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515 U.S.

200
115 S.Ct. 2097
132 L.Ed.2d 158

ADARAND CONSTRUCTORS, INC., Petitioner


v.
Federico PENA, Secretary of Transportation, et al.
No. 93-1841.

Supreme Court of the United States


Argued Jan. 17, 1995.
Decided June 12, 1995.

Syllabus *
Most federal agency contracts must contain a subcontractor compensation
clause, which gives a prime contractor a financial incentive to hire
subcontractors certified as small businesses controlled by socially and
economically disadvantaged individuals, and requires the contractor to
presume that such individuals include minorities or any other individuals
found to be disadvantaged by the Small Business Administration (SBA).
The prime contractor under a federal highway construction contract
containing such a clause awarded a subcontract to a company that was
certified as a small disadvantaged business. The record does not reveal
how the company obtained its certification, but it could have been by any
one of three routes: under one of two SBA programsknown as the 8(a)
and 8(d) programs or by a state agency under relevant Department of
Transportation regulations. Petitioner Adarand Constructors, Inc., which
submitted the low bid on the subcontract but was not a certified business,
filed suit against respondent federal officials, claiming that the race-based
presumptions used in subcontractor compensation clauses violate the
equal protection component of the Fifth Amendment's Due Process
Clause. The District Court granted respondents summary judgment. In
affirming, the Court of Appeals assessed the constitutionality of the
federal race-based action under a lenient standard, resembling
intermediate scrutiny, which it determined was required by Fullilove v.
Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902, and Metro
Broadcasting, Inc. v. FCC, 497 U.S. 547, 110 S.Ct. 2997, 111 L.Ed.2d
445.

Held: The judgment is vacated, and the case is remanded.


16 F.3d 1537 (CA10 1994), vacated and remanded.
Justice O'CONNOR delivered an opinion with respect to Parts I, II, III-A,
III-B, III-D, and IV, which was for the Court except insofar as it might be
inconsistent with the views expressed in Justice SCALIA's concurrence,
concluding that:

1. Adarand has standing to seek forward-looking relief. It has met the


requirements necessary to maintain its claim by alleging an invasion of a
legally protected interest in a particularized manner, and by showing that it is
very likely to bid, in the relatively near future, on another Government contract
offering financial incentives to a prime contractor for hiring disadvantaged
subcontractors. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112
S.Ct. 2130, 2136, 119 L.Ed.2d 351. Pp. ----.

2. All racial classifications, imposed by whatever federal, state, or local


governmental actor, must be analyzed by a reviewing court under strict
scrutiny. Pp. ____.

(a) In Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d
854, a majority of the Court held that the Fourteenth Amendment requires strict
scrutiny of all race-based action by state and local governments. While Croson
did not consider what standard of review the Fifth Amendment requires for
such action taken by the Federal Government, the Court's cases through Croson
had established three general propositions with respect to governmental racial
classifications. First, skepticism: " '[a]ny preference based on racial or ethnic
criteria must necessarily receive a most searching examination,' " Wygant v.
Jackson Board of Ed., 476 U.S. 267, 273-274, 106 S.Ct. 1842, 1847, 90
L.Ed.2d 260. Second, consistency: "the standard of review under the Equal
Protection Clause is not dependent on the race of those burdened or benefited
by a particular classification," Croson, supra, at 494, 109 S.Ct., at 722. And
third, congruence: "[e]qual protection analysis in the Fifth Amendment area is
the same as that under the Fourteenth Amendment," Buckley v. Valeo, 424 U.S.
1, 93, 96 S.Ct. 612, 670, 46 L.Ed.2d 659. Taken together, these propositions
lead to the conclusion that any person, of whatever race, has the right to
demand that any governmental actor subject to the Constitution justify any
racial classification subjecting that person to unequal treatment under the
strictest judicial scrutiny. Pp. ____.

(b) However, a year after Croson, the Court, in Metro Broadcasting, upheld
two federal race-based policies against a Fifth Amendment challenge. The
Court repudiated the long-held notion that "it would be unthinkable that the
same Constitution would impose a lesser duty on the Federal Government" than
it does on a State to afford equal protection of the laws, Bolling v. Sharpe, 347
U.S. 497, 500, 74 S.Ct. 693, 694, 98 L.Ed. 884, by holding that congressionally
mandated "benign" racial classifications need only satisfy intermediate
scrutiny. By adopting that standard, Metro Broadcasting departed from prior
cases in two significant respects. First, it turned its back on Croson's
explanation that strict scrutiny of governmental racial classifi- cations is
essential because it may not always be clear that a so-called preference is in fact
benign. Second, it squarely rejected one of the three propositions established by
this Court's earlier cases, namely, congruence between the standards applicable
to federal and state race-based action, and in doing so also undermined the other
two. Pp. ____.

(c) The propositions undermined by Metro Broadcasting all derive from the
basic principle that the Fifth and Fourteenth Amendments protect persons, not
groups. It follows from that principle that all governmental action based on race
a group classification long recognized as in most circumstances irrelevant
and therefore prohibitedshould be subjected to detailed judicial inquiry to
ensure that the personal right to equal protection has not been infringed. Thus,
strict scrutiny is the proper standard for analysis of all racial classifications,
whether imposed by a federal, state, or local actor. To the extent that Metro
Broadcasting is inconsistent with that holding, it is overruled. Pp. ____.

(d) The decision here makes explicit that federal racial classifications, like
those of a State, must serve a compelling governmental interest, and must be
narrowly tailored to further that interest. Thus, to the extent that Fullilove held
federal racial classifications to be subject to a less rigorous standard, it is no
longer controlling. Requiring strict scrutiny is the best way to ensure that courts
will consistently give racial classifications a detailed examination, as to both
ends and means. It is not true that strict scrutiny is strict in theory, but fatal in
fact. Government is not disqualified from acting in response to the unhappy
persistence of both the practice and the lingering effects of racial discrimination
against minority groups in this country. When race-based action is necessary to
further a compelling interest, such action is within constitutional constraints if
it satisfies the "narrow tailoring" test set out in this Court's previous cases. Pp.
____.

3. Because this decision alters the playing field in some important respects, the

case is remanded to the lower courts for further consideration. The Court of
Appeals did not decide whether the interests served by the use of subcontractor
compensation clauses are properly described as "compelling." Nor did it
address the question of narrow tailoring in terms of this Court's strict scrutiny
cases. Unresolved questions also remain concerning the details of the complex
regulatory regimes implicated by the use of such clauses. P. ____.
8

Justice SCALIA agreed that strict scrutiny must be applied to racial


classifications imposed by all governmental actors, but concluded that
government can never have a "compelling interest" in discriminating on the
basis of race in order to "make up" for past racial discrimination in the opposite
direction. Under the Constitution there can be no such thing as either a creditor
or a debtor race. We are just one race in the eyes of government. Pp. ____.

O'CONNOR, J., announced the judgment of the Court and delivered an opinion
with respect to Parts I, II, III-A, III-B, III-D, and IV, which was for the Court
except insofar as it might be inconsistent with the views expressed in the
concurrence of SCALIA, J., and an opinion with respect to Part III-C. Parts I,
II, III-A, III-B, III-D, and IV of that opinion were joined by REHNQUIST,
C.J., and KENNEDY and THOMAS, JJ., and by SCALIA, J., to the extent
heretofore indicated; and Part III-C was joined by KENNEDY, J. SCALIA, J.,
and THOMAS, J., filed opinions concurring in part and concurring in the
judgment. STEVENS, J., filed a dissenting opinion, in which GINSBURG, J.,
joined. SOUTER, J., filed a dissenting opinion, in which GINSBURG and
BREYER, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which
BREYER, J., joined.

10

William Perry Pendley, Denver, CO, for petitioner.

11

Drew S. Days, III, New Haven, CT, for respondents.

12

Justice O'CONNOR announced the judgment of the Court and delivered an


opinion with respect to Parts I, II, III-A, III-B, III-D, and IV, which is for the
Court except insofar as it might be inconsistent with the views expressed in
Justice SCALIA's concurrence, and an opinion with respect to Part III-C in
which Justice KENNEDY joins.

13

Petitioner Adarand Constructors, Inc., claims that the Federal Government's


practice of giving general contractors on government projects a financial
incentive to hire subcontractors controlled by "socially and economically
disadvantaged individuals," and in particular, the Government's use of race-

based presumptions in identifying such individuals, violates the equal


protection component of the Fifth Amendment's Due Process Clause. The
Court of Appeals rejected Adarand's claim. We conclude, however, that courts
should analyze cases of this kind under a different standard of review than the
one the Court of Appeals applied. We therefore vacate the Court of Appeals'
judgment and remand the case for further proceedings.
14

* In 1989, the Central Federal Lands Highway Division (CFLHD), which is


part of the United States Department of Transportation (DOT), awarded the
prime contract for a highway construction project in Colorado to Mountain
Gravel & Construction Company. Mountain Gravel then solicited bids from
subcontractors for the guardrail portion of the contract. Adarand, a Coloradobased highway construction company specializing in guardrail work, submitted
the low bid. Gonzales Construction Company also submitted a bid.

15

The prime contract's terms provide that Mountain Gravel would receive
additional compensation if it hired subcontractors certified as small businesses
controlled by "socially and economically disadvantaged individuals," App. 24.
Gonzales is certified as such a business; Adarand is not. Mountain Gravel
awarded the subcontract to Gonzales, despite Adarand's low bid, and Mountain
Gravel's Chief Estimator has submitted an affidavit stating that Mountain
Gravel would have accepted Adarand's bid, had it not been for the additional
payment it received by hiring Gonzales instead. Id., at 28-31. Federal law
requires that a subcontracting clause similar to the one used here must appear in
most federal agency contracts, and it also requires the clause to state that "[t]he
contractor shall presume that socially and economically disadvantaged
individuals include Black Americans, Hispanic Americans, Native Americans,
Asian Pacific Americans, and other minorities, or any other individual found to
be disadvantaged by the [Small Business] Administration pursuant to section
8(a) of the Small Business Act." 15 U.S.C. 637(d)(2), (3). Adarand claims
that the presumption set forth in that statute discriminates on the basis of race in
violation of the Federal Government's Fifth Amendment obligation not to deny
anyone equal protection of the laws.

16

These fairly straightforward facts implicate a complex scheme of federal


statutes and regulations, to which we now turn. The Small Business Act, 72
Stat. 384, as amended, 15 U.S.C. 631 et seq. (Act), declares it to be "the
policy of the United States that small business concerns, [and] small business
concerns owned and controlled by socially and economically disadvantaged
individuals, . . . shall have the maximum practicable opportunity to participate
in the performance of contracts let by any Federal agency." 8(d)(1), 15 U.S.C.
637(d)(1). The Act defines "socially disadvantaged individuals" as "those

who have been subjected to racial or ethnic prejudice or cultural bias because of
their identity as a member of a group without regard to their individual
qualities," 8(a)(5), 15 U.S.C. 637(a)(5), and it defines "economically
disadvantaged individuals" as "those socially disadvantaged individuals whose
ability to compete in the free enterprise system has been impaired due to
diminished capital and credit opportunities as compared to others in the same
business area who are not socially disadvantaged." 8(a)(6)(A), 15 U.S.C.
637(a)(6)(A).
17

In furtherance of the policy stated in 8(d)(1), the Act establishes "[t]he


Government-wide goal for participation by small business concerns owned and
controlled by socially and economically disadvantaged individuals" at "not less
than 5 percent of the total value of all prime contract and subcontract awards
for each fiscal year." 15 U.S.C. 644(g)(1). It also requires the head of each
Federal agency to set agency-specific goals for participation by businesses
controlled by socially and economically disadvantaged individuals. Ibid.

18

The Small Business Administration (SBA) has implemented these statutory


directives in a variety of ways, two of which are relevant here. One is the "8(a)
program," which is available to small businesses controlled by socially and
economically disadvantaged individuals as the SBA has defined those terms.
The 8(a) program confers a wide range of benefits on participating businesses,
see, e.g., 13 CFR 124.303-124.311, 124.403 (1994); 48 CFR subpt. 19.8
(1994), one of which is automatic eligibility for subcontractor compensation
provisions of the kind at issue in this case, 15 U.S.C. 637(d)(3)(C)
(conferring presumptive eligibility on anyone "found to be disadvantaged . . .
pursuant to section 8(a) of the Small Business Act"). To participate in the 8(a)
program, a business must be "small," as defined in 13 CFR 124.102 (1994);
and it must be 51% owned by individuals who qualify as "socially and
economically disadvantaged," 124.103. The SBA presumes that Black,
Hispanic, Asian Pacific, Subcontinent Asian, and Native Americans, as well as
"members of other groups designated from time to time by SBA," are "socially
disadvantaged," 124.105(b)(1). It also allows any individual not a member of
a listed group to prove social disadvantage "on the basis of clear and convincing
evidence," as described in 124.105(c). Social disadvantage is not enough to
establish eligibility, however; SBA also requires each 8(a) program participant
to prove "economic disadvantage" according to the criteria set forth in
124.106(a).

19

The other SBA program relevant to this case is the "8(d) subcontracting
program," which unlike the 8(a) program is limited to eligibility for
subcontracting provisions like the one at issue here. In determining eligibility,

the SBA presumes social disadvantage based on membership in certain minority


groups, just as in the 8(a) program, and again appears to require an
individualized, although "less restrictive," showing of economic disadvantage,
124.106(b). A different set of regulations, however, says that members of
minority groups wishing to participate in the 8(d) subcontracting program are
entitled to a race-based presumption of social and economic disadvantage. 48
CFR 19.001, 19.703(a)(2) (1994). We are left with some uncertainty as to
whether participation in the 8(d) subcontracting program requires an
individualized showing of economic disadvantage. In any event, in both the 8(a)
and the 8(d) programs, the presumptions of disadvantage are rebuttable if a
third party comes forward with evidence suggesting that the participant is not,
in fact, either economically or socially disadvantaged. 13 CFR 124.111(c)(d), 124.601-124.609 (1994).
20

The contract giving rise to the dispute in this case came about as a result of the
Surface Transportation and Uniform Relocation Assistance Act of 1987, Pub.L.
100-17, 101 Stat. 132 (STURAA), a DOT appropriations measure. Section
106(c)(1) of STURAA provides that "not less than 10 percent" of the
appropriated funds "shall be expended with small business concerns owned and
controlled by socially and economically disadvantaged individuals." 101 Stat.
145. STURAA adopts the Small Business Act's definition of "socially and
economically disadvantaged individual," including the applicable race-based
presumptions, and adds that "women shall be presumed to be socially and
economically disadvantaged individuals for purposes of this subsection."
106(c)(2)(B), 101 Stat. 146. STURAA also requires the Secretary of
Transportation to establish "minimum uniform criteria for State governments to
use in certifying whether a concern qualifies for purposes of this subsection."
106(c)(4), 101 Stat. 146. The Secretary has done so in 49 CFR pt. 23, subpt. D
(1994). Those regulations say that the certifying authority should presume both
social and economic disadvantage (i.e., eligibility to participate) if the applicant
belongs to certain racial groups, or is a woman. 49 CFR 23.62 (1994); 49
CFR pt. 23, subpt. D, App. C (1994). As with the SBA programs, third parties
may come forward with evidence in an effort to rebut the presumption of
disadvantage for a particular business. 49 CFR 23.69 (1994).

21

The operative clause in the contract in this case reads as follows:

22

"Subcontracting. This subsection is supplemented to include a Disadvantaged


Business Enterprise (DBE) Development and Subcontracting Provision as
follows:

23

"Monetary compensation is offered for awarding subcontracts to small business

concerns owned and controlled by socially and economically disadvantaged


individuals. . . .
24

"A small business concern will be considered a DBE after it has been certified
as such by the U.S. Small Business Administration or any State Highway
Agency. Certification by other Government agencies, counties, or cities may be
acceptable on an individual basis provided the Contracting Officer has
determined the certifying agency has an acceptable and viable DBE
certification program. If the Contractor requests payment under this provision,
the Contractor shall furnish the engineer with acceptable evidence of the
subcontractor(s) DBE certification and shall furnish one certified copy of the
executed subcontract(s).

25

.....

26

"The Contractor will be paid an amount computed as follows:

27

"1. If a subcontract is awarded to one DBE, 10 percent of the final amount of


the approved DBE subcontract, not to exceed 1.5 percent of the original
contract amount.

28

"2. If subcontracts are awarded to two or more DBEs, 10 percent of the final
amount of the approved DBE subcontracts, not to exceed 2 percent of the
original contract amount." App. 24-26. To benefit from this clause, Mountain
Gravel had to hire a subcontractor who had been certified as a small
disadvantaged business by the SBA, a state highway agency, or some other
certifying authority acceptable to the Contracting Officer. Any of the three
routes to such certification described aboveSBA's 8(a) or 8(d) program, or
certification by a State under the DOT regulationswould meet that
requirement. The record does not reveal how Gonzales obtained its certification
as a small disadvantaged business.

29

After losing the guardrail subcontract to Gonzales, Adarand filed suit against
various federal officials in the United States District Court for the District of
Colorado, claiming that the race-based presumptions involved in the use of
subcontracting compensation clauses violate Adarand's right to equal
protection. The District Court granted the Government's motion for summary
judgment. Adarand Constructors, Inc. v. Skinner, 790 F.Supp. 240 (1992). The
Court of Appeals for the Tenth Circuit affirmed. 16 F.3d 1537 (1994). It
understood our decision in Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758,
65 L.Ed.2d 902 (1980), to have adopted "a lenient standard, resembling

intermediate scrutiny, in assessing" the constitutionality of federal race-based


action. 16 F.3d, at 1544. Applying that "lenient standard," as further developed
in Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 110 S.Ct. 2997, 111 L.Ed.2d
445 (1990), the Court of Appeals upheld the use of subcontractor compensation
clauses. 16 F.3d, at 1547. We granted certiorari. 512 U.S. ----, 115 S.Ct. 41, 129
L.Ed.2d 936 (1994).
II
30

Adarand, in addition to its general prayer for "such other and further relief as to
the Court seems just and equitable," specifically seeks declaratory and
injunctive relief against any future use of subcontractor compensation clauses.
App. 22-23 (complaint). Before reaching the merits of Adarand's challenge, we
must consider whether Adarand has standing to seek forward-looking relief.
Adarand's allegation that it has lost a contract in the past because of a
subcontractor compensation clause of course entitles it to seek damages for the
loss of that contract (we express no view, however, as to whether sovereign
immunity would bar such relief on these facts). But as we explained in Los
Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), the fact
of past injury, "while presumably affording [the plaintiff] standing to claim
damages . . ., does nothing to establish a real and immediate threat that he
would again" suffer similar injury in the future. Id., at 105, 103 S.Ct., at 1667.

31

If Adarand is to maintain its claim for forward-looking relief, our cases require
it to allege that the use of subcontractor compensation clauses in the future
constitutes "an invasion of a legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or hypothetical."
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119
L.Ed.2d 351 (1992) (footnote, citations, and internal quotation marks omitted).
Adarand's claim that the Government's use of subcontractor compensation
clauses denies it equal protection of the laws of course alleges an invasion of a
legally protected interest, and it does so in a manner that is "particularized" as
to Adarand. We note that, contrary to the respondents' suggestion, see Brief for
Respondents 29-30, Adarand need not demonstrate that it has been, or will be,
the low bidder on a government contract. The injury in cases of this kind is that
a "discriminatory classification prevent[s] the plaintiff from competing on an
equal footing." General Contractors v. Jacksonville, 508 U.S. ----, ----, 113
S.Ct. 2297, 2304, 124 L.Ed.2d 586 (1993). The aggrieved party "need not
allege that he would have obtained the benefit but for the barrier in order to
establish standing." Id., at ----, 113 S.Ct., at 2303.

32

It is less clear, however, that the future use of subcontractor compensation

clauses will cause Adarand "immi- nent" injury. We said in Lujan that "
[a]lthough 'imminence' is concededly a somewhat elastic concept, it cannot be
stretched beyond its purpose, which is to insure that the alleged injury is not too
speculative for Article III purposesthat the injury is 'certainly impending.' "
Lujan, supra, at 565, n. 2, 112 S.Ct., at 2138, n. 2. We therefore must ask
whether Adarand has made an adequate showing that sometime in the relatively
near future it will bid on another government contract that offers financial
incentives to a prime contractor for hiring disadvantaged subcontractors.
33

We conclude that Adarand has satisfied this requirement. Adarand's general


manager said in a deposition that his company bids on every guardrail project
in Colorado. See Reply Brief for Petitioner 5-A. According to documents
produced in discovery, the CFLHD let fourteen prime contracts in Colorado
that included guardrail work between 1983 and 1990. Plaintiff's Motion for
Summary Judgment in No. 90-C-1413, Exh. I, Attachment A (D.Colo.). Two of
those contracts do not present the kind of injury Adarand alleges here. In one,
the prime contractor did not subcontract out the guardrail work; in another, the
prime contractor was itself a disadvantaged business, and in such cases the
contract generally does not include a subcontractor compensation clause. Ibid.;
see also id., Supplemental Exhibits, Deposition of Craig Actis 14 (testimony of
CFLHD employee that 8(a) contracts do not include subcontractor
compensation clauses). Thus, statistics from the years 1983 through 1990
indicate that the CFLHD lets on average one and one half contracts per year
that could injure Adarand in the manner it alleges here. Nothing in the record
suggests that the CFLHD has altered the frequency with which it lets contracts
that include guardrail work. And the record indicates that Adarand often must
compete for contracts against companies certified as small disadvantaged
businesses. See id., Exh. F, Attachments 1-3. Because the evidence in this case
indicates that the CFLHD is likely to let contracts involving guardrail work that
contain a subcontractor compensation clause at least once per year in Colorado,
that Adarand is very likely to bid on each such contract, and that Adarand often
must compete for such contracts against small disadvantaged businesses, we
are satisfied that Adarand has standing to bring this lawsuit.

III
34

The Government urges that "[t]he Subcontracting Compensation Clause


program is . . . a program based on disadvantage, not on race," and thus that it
is subject only to "the most relaxed judicial scrutiny." Brief for Respondents 26.
To the extent that the statutes and regulations involved in this case are race
neutral, we agree. The Government concedes, however, that "the race-based
rebuttable presumption used in some certification determinations under the

Subcontracting Compensation Clause" is subject to some heightened level of


scrutiny. Id., at 27. The parties disagree as to what that level should be. (We
note, incidentally, that this case concerns only classifications based explicitly
on race, and presents none of the additional difficulties posed by laws that,
although facially race neutral, result in racially disproportionate impact and are
motivated by a racially discriminatory purpose. See generally Arlington Heights
v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50
L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48
L.Ed.2d 597 (1976).)
35

Adarand's claim arises under the Fifth Amendment to the Constitution, which
provides that "No person shall . . . be deprived of life, liberty, or property,
without due process of law." Although this Court has always understood that
Clause to provide some measure of protection against arbitrary treatment by
the Federal Government, it is not as explicit a guarantee of equal treatment as
the Fourteenth Amendment, which provides that "No State shall . . . deny to any
person within its jurisdiction the equal protection of the laws" (emphasis
added). Our cases have accorded varying degrees of significance to the
difference in the language of those two Clauses. We think it necessary to revisit
the issue here.

A.
36

Through the 1940s, this Court had routinely taken the view in non-race-related
cases that, "[u]nlike the Fourteenth Amendment, the Fifth contains no equal
protection clause and it provides no guaranty against discriminatory legislation
by Congress." Detroit Bank v. United States, 317 U.S. 329, 337, 63 S.Ct. 297,
301, 87 L.Ed. 304 (1943); see also, e.g., Helvering v. Lerner Stores Corp., 314
U.S. 463, 468, 62 S.Ct. 341, 343, 86 L.Ed. 482 (1941); LaBelle Iron Works v.
United States, 256 U.S. 377, 392, 41 S.Ct. 528, 532, 65 L.Ed. 998 (1921)
("Reference is made to cases decided under the equal protection clause of the
Fourteenth Amendment . . .; but clearly they are not in point. The Fifth
Amendment has no equal protection clause"). When the Court first faced a
Fifth Amendment equal protection challenge to a federal racial classification, it
adopted a similar approach, with most unfortunate results. In Hirabayashi v.
United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943), the Court
considered a curfew applicable only to persons of Japanese ancestry. The Court
observedcorrectly that "[d]istinctions between citizens solely because of
their ancestry are by their very nature odious to a free people whose institutions
are founded upon the doctrine of equality," and that "racial discriminations are
in most circumstances irrelevant and therefore prohibited." Id., at 100, 63 S.Ct.,
at 1385. But it also cited Detroit Bank for the proposition that the Fifth

Amendment "restrains only such discriminatory legislation by Congress as


amounts to a denial of due process," ibid., and upheld the curfew because
"circumstances within the knowledge of those charged with the responsibility
for maintaining the national defense afforded a rational basis for the decision
which they made." Id., at 102, 63 S.Ct., at 1386.
37

Eighteen months later, the Court again approved wartime measures directed at
persons of Japanese ancestry. Korematsu v. United States, 323 U.S. 214, 65
S.Ct. 193, 89 L.Ed. 194 (1944), concerned an order that completely excluded
such persons from particular areas. The Court did not address the view,
expressed in cases like Hirabayashi and Detroit Bank, that the Federal
Government's obligation to provide equal protection differs significantly from
that of the States. Instead, it began by noting that "all legal restrictions which
curtail the civil rights of a single racial group are immediately suspect . . . [and]
courts must subject them to the most rigid scrutiny." 323 U.S., at 216, 65 S.Ct.,
at 194. That promising dictum might be read to undermine the view that the
Federal Government is under a lesser obligation to avoid injurious racial
classifications than are the States. Cf. id., at 234-235, 65 S.Ct., at 202 (Murphy,
J., dissenting) ("[T]he order deprives all those within its scope of the equal
protection of the laws as guaranteed by the Fifth Amendment"). But in spite of
the "most rigid scrutiny" standard it had just set forth, the Court then
inexplicably relied on "the principles we announced in the Hirabayashi case,"
id., at 217, 65 S.Ct., at 194, to conclude that, although "exclusion from the area
in which one's home is located is a far greater deprivation than constant
confinement to the home from 8 p.m. to 6 a.m.," id., at 218, 65 S.Ct., at 195,
the racially discriminatory order was nonetheless within the Federal
Government's power.*

38

In Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), the
Court for the first time explicitly questioned the existence of any difference
between the obligations of the Federal Government and the States to avoid
racial classifications. Bolling did note that "[t]he 'equal protection of the laws'
is a more explicit safeguard of prohibited unfairness than 'due process of law,' "
id., at 499, 74 S.Ct., at 694. But Bolling then concluded that, "[i]n view of [the]
decision that the Constitution prohibits the states from maintaining racially
segregated public schools, it would be unthinkable that the same Constitution
would impose a lesser duty on the Federal Government." Id., at 500, 74 S.Ct., at
695.

39

Bolling's facts concerned school desegregation, but its reasoning was not so
limited. The Court's observations that "[d]istinctions between citizens solely
because of their ancestry are by their very nature odious," Hirabayashi, 320

U.S., at 100, 63 S.Ct., at 1385, and that "all legal restrictions which curtail the
civil rights of a single racial group are immediately suspect," Korematsu, 323
U.S., at 216, 65 S.Ct., at 194, carry no less force in the context of federal action
than in the context of action by the Statesindeed, they first appeared in cases
concerning action by the Federal Government. Bolling relied on those
observations, 347 U.S., at 499, n. 3, 74 S.Ct., at 694, n. 3, and reiterated " 'that
the Constitution of the United States, in its present form, forbids, so far as civil
and political rights are concerned, discrimination by the General Government,
or by the States, against any citizen because of his race,' " id., at 499, 74 S.Ct.,
at 694 (quoting Gibson v. Mississippi, 162 U.S. 565, 591, 16 S.Ct. 904, 910, 40
L.Ed. 1075 (1896)) (emphasis added). The Court's application of that general
principle to the case before it, and the resulting imposition on the Federal
Government of an obligation equivalent to that of the States, followed as a
matter of course.
40

Later cases in contexts other than school desegregation did not distinguish
between the duties of the States and the Federal Government to avoid racial
classifications. Consider, for example, the following passage from McLaughlin
v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222, a 1964 case that struck
down a race-based state law:

41

"[W]e deal here with a classification based upon the race of the participants,
which must be viewed in light of the historical fact that the central purpose of
the Fourteenth Amendment was to eliminate racial discrimination emanating
from official sources in the States. This strong policy renders racial
classifications 'constitutionally suspect,' Bolling v. Sharpe, 347 U.S. 497, 499
[74 S.Ct. 693, 694]; and subject to the 'most rigid scrutiny,' Korematsu v.
United States, 323 U.S. 214, 216 [65 S.Ct. 193, 194]; and 'in most
circumstances irrelevant' to any constitutionally acceptable legislative purpose,
Hirabayashi v. United States, 320 U.S. 81, 100 [63 S.Ct. 1375, 1385]." Id., at
191-192, 85 S.Ct., at 288.

42

McLaughlin's reliance on cases involving federal action for the standards


applicable to a case involving state legislation suggests that the Court
understood the standards for federal and state racial classifications to be the
same.

43

Cases decided after McLaughlin continued to treat the equal protection


obligations imposed by the Fifth and the Fourteenth Amendments as
indistinguishable; one commentator observed that "[i]n case after case, fifth
amendment equal protection problems are discussed on the assumption that
fourteenth amendment precedents are controlling." Karst, The Fifth

Amendment's Guarantee of Equal Protection, 55 N.C.L.Rev. 541, 554 (1977).


Loving v. Virginia, which struck down a race- based state law, cited Korematsu
for the proposition that "the Equal Protection Clause demands that racial
classifications . . . be subjected to the 'most rigid scrutiny.' " 388 U.S. 1, 11, 87
S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967). The various opinions in Frontiero v.
Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), which
concerned sex discrimination by the Federal Government, took their equal
protection standard of review from Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30
L.Ed.2d 225 (1971), a case that invalidated sex discrimination by a State,
without mentioning any possibility of a difference between the standards
applicable to state and federal action. Frontiero, 411 U.S. at 682-684, 93 S.Ct.,
at 1768-1769 (plurality opinion of Brennan, J.); id., at 691, 93 S.Ct., at 1772
(Stewart, J., concurring in judgment); id., at 692, 93 S.Ct., at 1773 (Powell, J.,
concurring in judgment). Thus, in 1975, the Court stated explicitly that "[t]his
Court's approach to Fifth Amendment equal protection claims has always been
precisely the same as to equal protection claims under the Fourteenth
Amendment." Weinberger v. Wiesenfeld, 420 U.S. 636, 638, n. 2, 95 S.Ct.
1225, 1228, n. 2, 43 L.Ed.2d 514 (1975); see also Buckley v. Valeo, 424 U.S. 1,
93, 96 S.Ct. 612, 670, 46 L.Ed.2d 659 (1976) ("Equal protection analysis in the
Fifth Amendment area is the same as that under the Fourteenth Amendment");
United States v. Paradise, 480 U.S. 149, 166, n. 16, 107 S.Ct. 1053, 1064, n.
16, 94 L.Ed.2d 203 (1987) (plurality opinion of Brennan, J.) ("[T]he reach of
the equal protection guarantee of the Fifth Amendment is coextensive with that
of the Fourteenth"). We do not understand a few contrary suggestions appearing
in cases in which we found special deference to the political branches of the
Federal Government to be appropriate, e.g., Hampton v. Mow Sun Wong, 426
U.S. 88, 100, 101-102, n. 21, 96 S.Ct. 1895, 1903, 1904-1905, n. 21, 48
L.Ed.2d 495 (1976) (federal power over immigration), to detract from this
general rule.
B
44

Most of the cases discussed above involved classifications burdening groups


that have suffered discrimination in our society. In 1978, the Court confronted
the question whether race-based governmental action designed to benefit such
groups should also be subject to "the most rigid scrutiny." Regents of Univ. of
California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750, involved an
equal protection challenge to a state-run medical school's practice of reserving
a number of spaces in its entering class for minority students. The petitioners
argued that "strict scrutiny" should apply only to "classifications that
disadvantage 'discrete and insular minorities.' " Id., at 287-288, 98 S.Ct., at
2747 (opinion of Powell, J.) (citing United States v. Carolene Products Co.,

304 U.S. 144, 152, n. 4, 58 S.Ct. 778, 784, n. 4, 82 L.Ed. 1234 (1938)). Bakke
did not produce an opinion for the Court, but Justice Powell's opinion
announcing the Court's judgment rejected the argument. In a passage joined by
Justice White, Justice Powell wrote that "[t]he guarantee of equal protection
cannot mean one thing when applied to one individual and something else
when applied to a person of another color." 438 U.S., at 289-290, 98 S.Ct., at
2748. He concluded that "[r]acial and ethnic distinctions of any sort are
inherently suspect and thus call for the most exacting judicial examination." Id.,
at 291, 98 S.Ct., at 2748. On the other hand, four Justices in Bakke would have
applied a less stringent standard of review to racial classifications "designed to
further remedial purposes," see id., at 359, 98 S.Ct., at 2783 (Brennan, White,
Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in
part). And four Justices thought the case should be decided on statutory
grounds. Id., at 411-412, 421, 98 S.Ct., at 2809-2810, 2815 (STEVENS, J.,
joined by Burger, C.J., Stewart, and REHNQUIST, JJ., concurring in judgment
in part and dissenting in part).
45

Two years after Bakke, the Court faced another challenge to remedial racebased action, this time involving action undertaken by the Federal Government.
In Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980),
the Court upheld Congress' inclusion of a 10% set-aside for minority-owned
businesses in the Public Works Employment Act of 1977. As in Bakke, there
was no opinion for the Court. Chief Justice Burger, in an opinion joined by
Justices White and Powell, observed that "[a]ny preference based on racial or
ethnic criteria must necessarily receive a most searching examination to make
sure that it does not conflict with constitutional guarantees." 448 U.S., at 491,
100 S.Ct., at 2781. That opinion, however, "d[id] not adopt, either expressly or
implicitly, the formulas of analysis articulated in such cases as [Bakke ]." Id., at
492, 100 S.Ct., at 2781. It employed instead a two-part test which asked, first,
"whether the objectives of th[e] legislation are within the power of Congress,"
and second, "whether the limited use of racial and ethnic criteria, in the context
presented, is a constitutionally permissible means for achieving the
congressional objectives." Id., at 473, 100 S.Ct., at 2772. It then upheld the
program under that test, adding at the end of the opinion that the program also
"would survive judicial review under either 'test' articulated in the several
Bakke opinions." Id., at 492, 100 S.Ct., at 2781. Justice Powell wrote separately
to express his view that the plurality opinion had essentially applied "strict
scrutiny" as described in his Bakke opinioni.e., it had determined that the setaside was "a necessary means of advancing a compelling governmental
interest"and had done so correctly. 448 U.S., at 496, 100 S.Ct., at 2783-2784
(concurring opinion). Justice Stewart (joined by then-Justice REHNQUIST)
dissented, arguing that the Constitution required the Federal Government to

meet the same strict standard as the States when enacting racial classifications,
id., at 523, and n. 1, 100 S.Ct., at 2797, and n. 1, and that the program before
the Court failed that standard. Justice STEVENS also dissented, arguing that "
[r]acial classifications are simply too pernicious to permit any but the most
exact connection between justification and classification," id., at 537, 100 S.Ct.,
at 2805, and that the program before the Court could not be characterized "as a
'narrowly tailored' remedial measure." Id., at 541, 100 S.Ct., at 2807. Justice
Marshall (joined by Justices Brennan and Blackmun) concurred in the
judgment, reiterating the view of four Justices in Bakke that any race-based
governmental action designed to "remed[y] the present effects of past racial
discrimination" should be upheld if it was "substantially related" to the
achievement of an "important governmental objective"i.e., such action
should be subjected only to what we now call "intermediate scrutiny." 448 U.S.,
at 518-519, 100 S.Ct., at 2795.
46

In Wygant v. Jackson Board of Ed., 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d
260 (1986), the Court considered a Fourteenth Amendment challenge to another
form of remedial racial classification. The issue in Wygant was whether a
school board could adopt race-based preferences in determining which teachers
to lay off. Justice Powell's plurality opinion observed that "the level of scrutiny
does not change merely because the challenged classification operates against a
group that historically has not been subject to governmental discrimination," id.,
at 273, 106 S.Ct., at 1846, and stated the two-part inquiry as "whether the
layoff provision is supported by a compelling state purpose and whether the
means chosen to accomplish that purpose are narrowly tailored." Id., at 274,
106 S.Ct., at 1847. In other words, "racial classifications of any sort must be
subjected to 'strict scrutiny.' " Id., at 285, 106 S.Ct., at 1852 (O'CONNOR, J.,
concurring in part and concurring in judgment). The plurality then concluded
that the school board's interest in "providing minority role models for its
minority students, as an attempt to alleviate the effects of societal
discrimination," id., at 274, 106 S.Ct., at 1847, was not a compelling interest
that could justify the use of a racial classification. It added that "[s]ocietal
discrimination, without more, is too amorphous a basis for imposing a racially
classified remedy," id., at 276, 106 S.Ct., at 1848, and insisted instead that "a
public employer . . . must ensure that, before it embarks on an affirmativeaction program, it has convincing evidence that remedial action is warranted.
That is, it must have sufficient evidence to justify the conclusion that there has
been prior discrimination," id., at 277, 106 S.Ct., at 1848-1849. Justice White
concurred only in the judgment, although he agreed that the school board's
asserted interests could not, "singly or together, justify this racially
discriminatory layoff policy." Id., at 295, 106 S.Ct., at 1858. Four Justices
dissented, three of whom again argued for intermediate scrutiny of remedial

race-based government action. Id., at 301-302, 106 S.Ct., at 1861-1862


(Marshall, J., joined by Brennan and Blackmun, JJ., dissenting).
47

The Court's failure to produce a majority opinion in Bakke, Fullilove, and


Wygant left unresolved the proper analysis for remedial race-based
governmental action. See United States v. Paradise, 480 U.S., at 166, 107
,S.Ct., at 1063 (plurality opinion of Brennan, J.) ("[A]lthough this Court has
consistently held that some elevated level of scrutiny is required when a racial
or ethnic distinction is made for remedial purposes, it has yet to reach
consensus on the appropriate constitutional analysis"); Sheet Metal Workers v.
EEOC, 478 U.S. 421, 480, 106 S.Ct. 3019, 3052, 92 L.Ed.2d 344 (1986)
(plurality opinion of Brennan, J.). Lower courts found this lack of guidance
unsettling. See, e.g., Kromnick v. School Dist. of Philadelphia, 739 F.2d 894,
901 (CA3 1984) ("The absence of an Opinion of the Court in either Bakke or
Fullilove and the concomitant failure of the Court to articulate an analytic
framework supporting the judgments makes the position of the lower federal
courts considering the constitutionality of affirmative action programs
somewhat vulnerable"), cert. denied, 469 U.S. 1107, 105 S.Ct. 782, 83 L.Ed.2d
777 (1985); Williams v. New Orleans, 729 F.2d 1554, 1567 (CA5 1984) (en
banc) (Higginbotham, J., concurring specially); South Florida Chapter of
Associated General Contractors of America, Inc. v. Metropolitan Dade County,
Fla., 723 F.2d 846, 851 (CA11), cert. denied, 469 U.S. 871, 105 S.Ct. 220, 83
L.Ed.2d 150 (1984).

48

The Court resolved the issue, at least in part, in 1989. Richmond v. J.A. Croson
Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), concerned a city's
determination that 30% of its contract- ing work should go to minority-owned
businesses. A majority of the Court in Croson held that "the standard of review
under the Equal Protection Clause is not dependent on the race of those
burdened or benefited by a particular classification," and that the single
standard of review for racial classifications should be "strict scrutiny." Id., at
493-494, 109 S.Ct., at 722 (opinion of O'CONNOR, J., joined by
REHNQUIST, C.J., White, and KENNEDY, JJ.); id., at 520, 109 S.Ct., at 735
(SCALIA, J., concurring in judgment) ("I agree . . . with Justice O'CONNOR's
conclusion that strict scrutiny must be applied to all governmental classification
by race"). As to the classification before the Court, the plurality agreed that "a
state or local subdivision . . . has the authority to eradicate the effects of private
discrimination within its own legislative jurisdiction," id., at 491-492, 109
S.Ct., at 720-721, but the Court thought that the city had not acted with "a
'strong basis in evidence for its conclusion that remedial action was necessary,'
" id., at 500, 109 S.Ct., at 725 (majority opinion) (quoting Wygant, supra, at
277, 106 S.Ct., at 1849 (plurality opinion)). The Court also thought it "obvious

that [the] program is not narrowly tailored to remedy the effects of prior
discrimination." 488 U.S., at 508, 109 S.Ct., at 729-730.
49

With Croson, the Court finally agreed that the Fourteenth Amendment requires
strict scrutiny of all race-based action by state and local governments. But
Croson of course had no occasion to declare what standard of review the Fifth
Amendment requires for such action taken by the Federal Government. Croson
observed simply that the Court's "treatment of an exercise of congressional
power in Fullilove cannot be dispositive here," because Croson's facts did not
implicate Congress' broad power under 5 of the Fourteenth Amendment.
Croson, 488 U.S., at 491, 109 S.Ct., at 720 (plurality opinion); see also id., at
522, 109 S.Ct., at 737 (SCALIA, J., concurring in judgment) ("[W]ithout
revisiting what we held in Fullilove . . ., I do not believe our decision in that
case controls the one before us here"). On the other hand, the Court
subsequently indicated that Croson had at least some bearing on federal racebased action when it vacated a decision upholding such action and remanded
for further consideration in light of Croson. H.K. Porter Co. v. Metropolitan
Dade County, 489 U.S. 1062, 109 S.Ct. 1333, 103 L.Ed.2d 804 (1989); see also
Shurberg Broadcasting of Hartford, Inc. v. FCC, 876 F.2d 902, 915, n. 16
(CADC 1989) (opinion of Silberman, J.) (noting the Court's action in H.K.
Porter Co.), rev'd sub nom. Metro Broadcasting, Inc. v. FCC, 497 U.S. 547,
110 S.Ct. 2997, 111 L.Ed.2d 445 (1990). Thus, some uncertainty persisted with
respect to the standard of review for federal racial classifications. See, e.g.,
Mann v. City of Albany, Ga., 883 F.2d 999, 1006 (CA11 1989) (Croson "may
be applicable to race-based classifications imposed by Congress"); Shurberg,
supra, at 910 (noting the difficulty of extracting general principles from the
Court's fractured opinions); id., at 959 (Wald, J., dissenting from denial of
rehearing en banc) ("Croson certainly did not resolve the substantial questions
posed by congressional programs which mandate the use of racial
preferences"); Winter Park Communications, Inc. v. FCC, 873 F.2d 347, 366
(CADC 1989) (Williams, J., concurring in part and dissenting in part) ("The
unresolved ambiguity of Fullilove and Croson leaves it impossible to reach a
firm opinion as to the evidence of discrimination needed to sustain a
congressional mandate of racial preferences"), aff'd sub nom. Metro
Broadcasting, supra.

50

Despite lingering uncertainty in the details, however, the Court's cases through
Croson had established three general propositions with respect to governmental
racial classifications. First, skepticism: " '[a]ny preference based on racial or
ethnic criteria must necessarily receive a most searching examination,' "
Wygant, 476 U.S., at 273, 106 S.Ct., at 1847 (plurality opinion of Powell, J.);
Fullilove, 448 U.S., at 491, 100 S.Ct., at 2781 (opinion of Burger, C.J.); see

also id., at 523, 100 S.Ct., at 2798 (Stewart, J., dissenting) ("[A]ny official
action that treats a person differently on account of his race or ethnic origin is
inherently suspect"); McLaughlin, 379 U.S., at 192, 85 S.Ct., at 288 ("[R]acial
classifications [are] 'constitutionally suspect' "); Hirabayashi, 320 U.S., at 100,
63 S.Ct., at 1385 ("Distinctions between citizens solely because of their
ancestry are by their very nature odious to a free people"). Second, consistency:
"the standard of review under the Equal Protection Clause is not dependent on
the race of those burdened or benefited by a particular classification," Croson,
488 U.S., at 494, 109 S.Ct., at 722 (plurality opinion); id., at 520, 109 S.Ct., at
735 (SCALIA, J., concurring in judgment); see also Bakke, 438 U.S., at 289290, 98 S.Ct., at 2747-2748 (opinion of Powell, J.), i.e., all racial classifications
reviewable under the Equal Protection Clause must be strictly scrutinized. And
third, congruence: "[e]qual protection analysis in the Fifth Amendment area is
the same as that under the Fourteenth Amendment," Buckley v. Valeo, 424 U.S.,
at 93, 96 S.Ct., at 670; see also Weinberger v. Wiesenfeld, 420 U.S., at 638, n.
2, 95 S.Ct., at 1228, n. 2; Bolling v. Sharpe, 347 U.S., at 500, 74 S.Ct., at 694.
Taken together, these three propositions lead to the conclusion that any person,
of whatever race, has the right to demand that any governmental actor subject
to the Constitution justify any racial classification subjecting that person to
unequal treatment under the strictest judicial scrutiny. Justice Powell's defense
of this conclusion bears repeating here:
51

"If it is the individual who is entitled to judicial protection against


classifications based upon his racial or ethnic background because such
distinctions impinge upon personal rights, rather than the individual only
because of his membership in a particular group, then constitutional standards
may be applied consistently. Political judgments regarding the necessity for the
particular classification may be weighed in the constitutional balance,
[Korematsu ], but the standard of justification will remain constant. This is as it
should be, since those political judgments are the product of rough compromise struck by contending groups within the democratic process. When they
touch upon an individual's race or ethnic background, he is entitled to a judicial
determination that the burden he is asked to bear on that basis is precisely
tailored to serve a compelling governmental interest. The Constitution
guarantees that right to every person regardless of his background. Shelley v.
Kraemer, 334 U.S. [1, 22, 68 S.Ct. 836, 846, 92 L.Ed. 1161 (1948) ]." Bakke,
438 U.S., at 299, 98 S.Ct., at 2753 (opinion of Powell, J.) (footnote omitted).

52

A year later, however, the Court took a surprising turn. Metro Broadcasting,
Inc. v. FCC, 497 U.S. 547, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990), involved a
Fifth Amendment challenge to two race-based policies of the Federal
Communications Commission. In Metro Broadcasting, the Court repudiated the

long-held notion that "it would be unthinkable that the same Constitution
would impose a lesser duty on the Federal Government" than it does on a State
to afford equal protection of the laws, Bolling, supra, at 500, 74 S.Ct., at 694. It
did so by holding that "benign" federal racial classifications need only satisfy
intermediate scrutiny, even though Croson had recently concluded that such
classifications enacted by a State must satisfy strict scrutiny. "[B]enign" federal
racial classifications, the Court said, "even if those measures are not
'remedial' in the sense of being designed to compensate victims of past
governmental or societal discriminationare constitutionally permissible to the
extent that they serve important governmental objectives within the power of
Congress and are substantially related to achievement of those objectives."
Metro Broadcasting, 497 U.S., at 564-565, 110 S.Ct., at 3008-3009 (emphasis
added). The Court did not explain how to tell whether a racial classification
should be deemed "benign," other than to express "confiden[ce] that an
'examination of the legislative scheme and its history' will separate benign
measures from other types of racial classifications." Id., at 564, n. 12, 110 S.Ct.,
at 3009, n. 12 (citation omitted).
53

Applying this test, the Court first noted that the FCC policies at issue did not
serve as a remedy for past discrimination. Id., at 566, 110 S.Ct., at 3009.
Proceeding on the assumption that the policies were nonetheless "benign," it
concluded that they served the "important governmental objective" of
"enhancing broadcast diversity," id., at 566-567, 110 S.Ct., at 3009-3010, and
that they were "substantially related" to that objective, id., at 569, 110 S.Ct., at
3011. It therefore upheld the policies.

54

By adopting intermediate scrutiny as the standard of review for congressionally


mandated "benign" racial classifications, Metro Broadcasting departed from
prior cases in two significant respects. First, it turned its back on Croson's
explanation of why strict scrutiny of all governmental racial classifications is
essential:

55

"Absent searching judicial inquiry into the justification for such race-based
measures, there is simply no way of determining what classifications are
'benign' or 'remedial' and what classifications are in fact motivated by
illegitimate notions of racial inferiority or simple racial politics. Indeed, the
purpose of strict scrutiny is to 'smoke out' illegitimate uses of race by assuring
that the legislative body is pursuing a goal important enough to warrant use of a
highly suspect tool. The test also ensures that the means chosen 'fit' this
compelling goal so closely that there is little or no possibility that the motive
for the classification was illegitimate racial prejudice or stereotype." Croson,
supra, at 493, 109 S.Ct., at 721 (plurality opinion of O'CONNOR, J.).

56

We adhere to that view today, despite the surface appeal of holding "benign"
racial classifications to a lower standard, because "it may not always be clear
that a so-called preference is in fact benign," Bakke, supra, at 298, 98 S.Ct., at
2752 (opinion of Powell, J.). "[M]ore than good motives should be required
when government seeks to allocate its resources by way of an explicit racial
classification system." Days, Fullilove, 96 Yale L.J. 453, 485 (1987).

57

Second, Metro Broadcasting squarely rejected one of the three propositions


established by the Court's earlier equal protection cases, namely, congruence
between the standards applicable to federal and state racial classifications, and
in so doing also undermined the other twoskepticism of all racial
classifications, and consistency of treatment irrespective of the race of the
burdened or benefited group. See supra, at ____. Under Metro Broadcasting,
certain racial classifications ("benign" ones enacted by the Federal
Government) should be treated less skeptically than others; and the race of the
benefited group is critical to the determination of which standard of review to
apply. Metro Broadcasting was thus a significant departure from much of what
had come before it.

58

The three propositions undermined by Metro Broadcasting all derive from the
basic principle that the Fifth and Fourteenth Amendments to the Constitution
protect persons, not groups. It follows from that principle that all governmental
action based on racea group classification long recognized as "in most
circumstances irrelevant and therefore prohibited," Hirabayashi, supra, at 100,
63 S.Ct., at 1385should be subjected to detailed judicial inquiry to ensure
that the personal right to equal protection of the laws has not been infringed.
These ideas have long been central to this Court's understanding of equal
protection, and holding "benign" state and federal racial classifications to
different standards does not square with them. "[A] free people whose
institutions are founded upon the doctrine of equality," ibid., should tolerate no
retreat from the principle that government may treat people differently because
of their race only for the most compelling reasons. Accordingly, we hold today
that all racial classifications, imposed by whatever federal, state, or local
governmental actor, must be analyzed by a reviewing court under strict
scrutiny. In other words, such classifications are constitutional only if they are
narrowly tailored measures that further compelling governmental interests. To
the extent that Metro Broadcasting is inconsistent with that holding, it is
overruled.

59

In dissent, Justice STEVENS criticizes us for "deliver[ing] a disconcerting


lecture about the evils of governmental racial classifications," post, at ____.
With respect, we believe his criticisms reflect a serious misunderstanding of our

opinion.
60

Justice STEVENS concurs in our view that courts should take a skeptical view
of all governmental racial classifications. Post, at ____. He also allows that "
[n]othing is inherently wrong with applying a single standard to fundamentally
different situations, as long as that standard takes relevant differences into
account." Post, at ____. What he fails to recognize is that strict scrutiny does
take "relevant differences" into accountindeed, that is its fundamental
purpose. The point of carefully examining the interest asserted by the
government in support of a racial classification, and the evidence offered to
show that the classification is needed, is precisely to distinguish legitimate from
illegitimate uses of race in governmental decisionmaking. See supra, at ____.
And Justice STEVENS concedes that "some cases may be difficult to classify,"
post, at ____, and n. 4; all the more reason, in our view, to examine all racial
classifications carefully. Strict scrutiny does not "trea[t] dissimilar race-based
decisions as though they were equally objectionable," post, at ____; to the
contrary, it evaluates carefully all governmental race-based decisions in order
to decide which are constitutionally objectionable and which are not. By
requiring strict scrutiny of racial classifications, we require courts to make sure
that a governmental classification based on race, which "so seldom provide[s] a
relevant basis for disparate treatment," Fullilove, supra, at 534, 100 S.Ct., at
2803 (STEVENS, J., dissenting), is legitimate, before permitting unequal
treatment based on race to proceed.

61

Justice STEVENS chides us for our "supposed inability to differentiate between


'invidious' and 'benign' discrimination," because it is in his view sufficient that
"people understand the difference between good intentions and bad." Post, at
____. But, as we have just explained, the point of strict scrutiny is to
"differentiate between" permissible and impermissible governmental use of
race. And Justice STEVENS himself has already explained in his dissent in
Fullilove why "good intentions" alone are not enough to sustain a supposedly
"benign" racial classification: "[E]ven though it is not the actual predicate for
this legislation, a statute of this kind inevitably is perceived by many as resting
on an assumption that those who are granted this special preference are less
qualified in some respect that is identified purely by their race. Because that
perception especially when fostered by the Congress of the United Statescan
only exacerbate rather than reduce racial prejudice, it will delay the time when
race will become a truly irrelevant, or at least insignificant, factor. Unless
Congress clearly articulates the need and basis for a racial classification, and
also tailors the classification to its justification, the Court should not uphold
this kind of statute." Fullilove, supra, at 545, 100 S.Ct., at 2809 (dissenting
opinion) (emphasis added; footnote omitted); see also id., at 537, 100 S.Ct., at

2805 ("Racial classifications are simply too pernicious to permit any but the
most exact connection between justification and classification"); Croson, supra,
at 516-517, 109 S.Ct., at 734 (STEVENS, J., concurring in part and concurring
in judgment) ("Although [the legislation at issue] stigmatizes the disadvantaged
class with the unproven charge of past racial discrimination, it actually imposes
a greater stigma on its supposed beneficiaries"); supra, at ____; but cf. post, at
____ (STEVENS, J., dissenting). These passages make a persuasive case for
requiring strict scrutiny of congressional racial classifications.
62

Perhaps it is not the standard of strict scrutiny itself, but our use of the concepts
of "consistency" and "congruence" in conjunction with it, that leads Justice
STEVENS to dissent. According to Justice STEVENS, our view of consistency
"equate[s] remedial preferences with invidious discrimination," post, at ____,
and ignores the difference between "an engine of oppression" and an effort "to
foster equality in society," or, more colorfully, "between a 'No Trespassing' sign
and a welcome mat," post, at ____. It does nothing of the kind. The principle of
consistency simply means that whenever the government treats any person
unequally because of his or her race, that person has suffered an injury that falls
squarely within the language and spirit of the Constitution's guarantee of equal
protection. It says nothing about the ultimate validity of any particular law; that
determination is the job of the court applying strict scrutiny. The principle of
consistency explains the circumstances in which the injury requiring strict
scrutiny occurs. The application of strict scrutiny, in turn, determines whether a
compelling governmental interest justifies the infliction of that injury.

63

Consistency does recognize that any individual suffers an injury when he or she
is disadvantaged by the government because of his or her race, whatever that
race may be. This Court clearly stated that principle in Croson, see 488 U.S., at
493-494, 109 S.Ct., at 721-722 (plurality opinion); id., at 520-521, 109 S.Ct., at
735-736 (SCALIA, J., concurring in judgment); see also Shaw v. Reno, 509
U.S. ----, ----, 113 S.Ct. 2816, 2824, 125 L.Ed.2d 511 (1993); Powers v. Ohio,
499 U.S. 400, 410, 111 S.Ct. 1364, 1370, 113 L.Ed.2d 411 (1991). Justice
STEVENS does not explain how his views square with Croson, or with the long
line of cases understanding equal protection as a personal right.

64

Justice STEVENS also claims that we have ignored any difference between
federal and state legislatures. But requiring that Congress, like the States, enact
racial classifications only when doing so is necessary to further a "compelling
interest" does not contravene any principle of appropriate respect for a co-equal
Branch of the Government. It is true that various Members of this Court have
taken different views of the authority 5 of the Fourteenth Amendment confers
upon Congress to deal with the problem of racial discrimination, and the extent

to which courts should defer to Congress' exercise of that authority. See, e.g.,
Metro Broadcasting, supra, at 605-606, 110 S.Ct., at 3030-3031 (O'CONNOR,
J., dissenting); Croson, supra, at 486-493, 109 S.Ct., at 717-722 (opinion of
O'CONNOR, J., joined by REHNQUIST, C.J., and White, J.); id., at 518-519,
109 S.Ct., at 734-735 (KENNEDY, J., concurring in part and concurring in
judgment); id., at 521-524, 109 S.Ct., at 736-738 (SCALIA, J., concurring in
judgment); Fullilove, supra, at 472-473, 100 S.Ct., at 2771-2772 (opinion of
Burger, C.J.); id., at 500-502, and nn. 2-3, 515, and n. 14, 100 S.Ct., at 27862787, and nn. 2-3, 2793, and n. 14 (Powell, J., concurring); id., at 526-527, 100
S.Ct., at 2799-2800 (Stewart, J., dissenting). We need not, and do not, address
these differences today. For now, it is enough to observe that Justice
STEVENS' suggestion that any Member of this Court has repudiated in this
case his or her previously expressed views on the subject, post, at ____, is
incorrect.
C
65

"Although adherence to precedent is not rigidly required in constitutional cases,


any departure from the doctrine of stare decisis demands special justification."
Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 2311, 81 L.Ed.2d 164
(1984). In deciding whether this case presents such justification, we recall
Justice Frankfurter's admonition that "stare decisis is a principle of policy and
not a mechanical formula of adherence to the latest decision, however recent
and questionable, when such adherence involves collision with a prior doctrine
more embracing in its scope, intrinsically sounder, and verified by experience."
Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 451, 84 L.Ed. 604
(1940). Remaining true to an "intrinsically sounder" doctrine established in
prior cases better serves the values of stare decisis than would following a
more recently decided case inconsistent with the decisions that came before it;
the latter course would simply compound the recent error and would likely
make the unjustified break from previously established doctrine complete. In
such a situation, "special justification" exists to depart from the recently
decided case.

66

As we have explained, Metro Broadcasting undermined important principles of


this Court's equal protection jurisprudence, established in a line of cases
stretching back over fifty years, see supra, at ____. Those principles together
stood for an "embracing" and "intrinsically soun[d]" understanding of equal
protection "verified by experience," namely, that the Constitution imposes upon
federal, state, and local governmental actors the same obligation to respect the
personal right to equal protection of the laws. This case therefore presents
precisely the situation described by Justice Frankfurter in Helvering: we cannot

adhere to our most recent decision without colliding with an accepted and
established doctrine. We also note that Metro Broadcasting's application of
different standards of review to federal and state racial classifications has been
consistently criticized by commentators. See, e.g., Fried, Metro Broadcasting,
Inc. v. FCC: Two Concepts of Equality, 104 Harv.L.Rev. 107, 113-117 (1990)
(arguing that Metro Broadcasting's adoption of different standards of review
for federal and state racial classifications placed the law in an "unstable
condition," and advocating strict scrutiny across the board); Devins, Metro
Broadcasting, Inc. v. FCC: Requiem for a Heavyweight, 69 Texas L.Rev. 125,
145-146 (1990) (same); Linder, Review of Affirmative Action After Metro
Broadcasting v. FCC: The Solution Almost Nobody Wanted, 59 UMKC
L.Rev. 293, 297, 316-317 (1991) (criticizing "anomalous results as exemplified
by the two different standards of review"); Katz, Public Affirmative Action and
the Fourteenth Amendment: The Fragmentation of Theory After Richmond v.
J.A. Croson Co. and Metro Broadcasting, Inc. v. Federal Communications
Commission, 17 T. Marshall L.Rev. 317, 319, 354-355, 357 (1992) (arguing
that "the current fragmentation of doctrine must be seen as a dangerous and
seriously flawed approach to constitutional interpretation," and advocating
intermediate scrutiny across the board).
67

Our past practice in similar situations supports our action today. In United
States v. Dixon, 509 U.S. ----, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), we
overruled the recent case of Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084,
109 L.Ed.2d 548 (1990), because Grady "lack[ed] constitutional roots" and was
"wholly inconsistent with earlier Supreme Court precedent." Dixon, supra, at ---, ----, 113 S.Ct., at 2852, 2860. In Solorio v. United States, 483 U.S. 435, 107
S.Ct. 2924, 97 L.Ed.2d 364 (1987), we overruled O'Callahan v. Parker, 395
U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), which had caused "confusion"
and had rejected "an unbroken line of decisions from 1866 to 1960." Solorio,
supra, at 439-441, 450-451, 107 S.Ct., at 2926-2928, 2932-2933. And in
Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S.Ct. 2549, 53
L.Ed.2d 568 (1977), we overruled United States v. Arnold, Schwinn & Co., 388
U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967), which was "an abrupt and
largely unexplained departure" from precedent, and of which "[t]he great
weight of scholarly opinion ha[d] been critical." Continental T.V., supra, at 4748, 58, 97 S.Ct., at 2556, 2561. See also, e.g., Payne v. Tennessee, 501 U.S.
808, 830, 111 S.Ct. 2597, 2611, 115 L.Ed.2d 720 (1991) (overruling Booth v.
Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and South
Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989));
Monell v. New York City Dept. of Social Services, 436 U.S. 658, 695-701, 98
S.Ct. 2018, 2038-2041, 56 L.Ed.2d 611 (1978) (partially overruling Monroe v.
Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), because Monroe was

a "departure from prior practice" that had not engendered substantial reliance);
Swift & Co. v. Wickham, 382 U.S. 111, 128-129, 86 S.Ct. 258, 267-268, 15
L.Ed.2d 194 (1965) (overruling Kesler v. Department of Public Safety of Utah,
369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641 (1962), to reaffirm "pre-Kesler
precedent" and restore the law to the "view . . . which this Court has
traditionally taken" in older cases).
68

It is worth pointing out the difference between the applications of stare decisis
in this case and in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. ---, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). Casey explained how
considerations of stare decisis inform the decision whether to overrule a longestablished precedent that has become integrated into the fabric of the law.
Overruling precedent of that kind naturally may have consequences for "the
ideal of the rule of law," id., at ----, 112 S.Ct., at 2797. In addition, such
precedent is likely to have engendered substantial reliance, as was true in Casey
itself, id., at ----, 112 S.Ct., at 2809 ("[F]or two decades of economic and social
developments, people have organized intimate relationships and made choices
that define their views of themselves and their places in society, in reliance on
the availability of abortion in the event that contraception should fail"). But in
this case, as we have explained, we do not face a precedent of that kind,
because Metro Broadcasting itself departed from our prior casesand did so
quite recently. By refusing to follow Metro Broadcasting, then, we do not
depart from the fabric of the law; we restore it. We also note that reliance on a
case that has recently departed from precedent is likely to be minimal,
particularly where, as here, the rule set forth in that case is unlikely to affect
primary conduct in any event. Cf. Allied-Bruce Terminix Cos. v. Dobson, 513
U.S. ----, ----, 115 S.Ct. 834, 838-839, 130 L.Ed.2d 753 (1995) (declining to
overrule Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1
(1984), where "private parties have likely written contracts relying upon
Southland as authority" in the ten years since Southland was decided).

69

Justice STEVENS takes us to task for what he perceives to be an erroneous


application of the doctrine of stare decisis. But again, he misunderstands our
position. We have acknowledged that, after Croson, "some uncertainty
persisted with respect to the standard of review for federal racial
classifications," supra, at ____, and we therefore do not say that we "merely
restor[e] the status quo ante " today, post, at ____. But as we have described
supra, at ____, we think that well-settled legal principles pointed toward a
conclusion different from that reached in Metro Broadcasting, and we therefore
disagree with Justice STEVENS that "the law at the time of that decision was
entirely open to the result the Court reached," post, at ____. We also disagree
with Justice STEVENS that Justice Stewart's dissenting opinion in Fullilove

supports his "novelty" argument, see post, at ____, and n. 13. Justice Stewart
said that "[u]nder our Constitution, any official action that treats a person
differently on account of his race or ethnic origin is inherently suspect and
presumptively invalid," and that " '[e]qual protection analysis in the Fifth
Amendment area is the same as that under the Fourteenth Amendment.' "
Fullilove, supra, at 523, and n. 1, 100 S.Ct., at 2798, and n. 1. He took the view
that "[t]he hostility of the Constitution to racial classifications by government
has been manifested in many cases decided by this Court," and that "our cases
have made clear that the Constitution is wholly neutral in forbidding such racial
discrimination, whatever the race may be of those who are its victims." Id., at
524, 100 S.Ct., at 2798. Justice Stewart gave no indication that he thought he
was addressing a "novel" proposition, post, at ____. Rather, he relied on the
fact that the text of the Fourteenth Amendment extends its guarantee to
"persons," and on cases like Buckley, Loving, McLaughlin, Bolling,
Hirabayashi, and Korematsu, see Fullilove, supra, at 524-526, 100 S.Ct., at
2798-2800, as do we today. There is nothing new about the notion that
Congress, like the States, may treat people differently because of their race only
for compelling reasons.
70

"The real problem," Justice Frankfurter explained, "is whether a principle shall
prevail over its later misapplications." Helvering, 309 U.S., at 122, 60 S.Ct., at
453. Metro Broadcasting's untenable distinction between state and federal
racial classifications lacks support in our precedent, and undermines the
fundamental principle of equal protection as a personal right. In this case, as
between that principle and "its later misapplications," the principle must
prevail.

D
71

Our action today makes explicit what Justice Powell thought implicit in the
Fullilove lead opinion: federal racial classifications, like those of a State, must
serve a compelling governmental interest, and must be narrowly tailored to
further that interest. See Fullilove, 448 U.S., at 496, 100 S.Ct., at 2783-84
(concurring opinion). (Recall that the lead opinion in Fullilove "d[id] not adopt
. . . the formulas of analysis articulated in such cases as [Bakke ]." Id., at 492,
100 S.Ct., at 2781 (opinion of Burger, C.J.).) Of course, it follows that to the
extent (if any) that Fullilove held federal racial classifications to be subject to a
less rigorous standard, it is no longer controlling. But we need not decide today
whether the program upheld in Fullilove would survive strict scrutiny as our
more recent cases have defined it.

72

Some have questioned the importance of debating the proper standard of review

of race-based legislation. See, e.g., post, at ____ (STEVENS, J., dissenting);


Croson, 488 U.S., at 514-515, and n. 5, 109 S.Ct., at 733, and n. 5 (STEVENS,
J., concurring in part and concurring in judgment); cf. Metro Broadcasting, 497
U.S., at 610, 110 S.Ct., at 3033 (O'CONNOR, J., dissenting) ("This dispute
regarding the appropriate standard of review may strike some as a lawyers'
quibble over words"). But we agree with Justice STEVENS that, "[b]ecause
racial characteristics so seldom provide a relevant basis for disparate treatment,
and because classifications based on race are potentially so harmful to the
entire body politic, it is especially important that the reasons for any such
classification be clearly identified and unquestionably legitimate," and that "
[r]acial classifications are simply too pernicious to permit any but the most
exact connection between justification and classification." Fullilove, supra, at
533-535, 537, 100 S.Ct., at 2803-2804, 2805 (dissenting opinion) (footnotes
omitted). We think that requiring strict scrutiny is the best way to ensure that
courts will consistently give racial classifications that kind of detailed
examination, both as to ends and as to means. Korematsu demonstrates vividly
that even "the most rigid scrutiny" can sometimes fail to detect an illegitimate
racial classification, compare Korematsu, 323 U.S., at 223, 65 S.Ct., at 197
("To cast this case into outlines of racial prejudice, without reference to the real
military dangers which were presented, merely confuses the issue. Korematsu
was not excluded from the Military Area because of hostility to him or his
race"), with Pub.L. 100-383, 2(a), 102 Stat. 903-904 ("[T]hese actions [of
relocating and interning civilians of Japanese ancestry] were carried out without
adequate security reasons . . . and were motivated largely by racial prejudice,
wartime hysteria, and a failure of political leadership"). Any retreat from the
most searching judicial inquiry can only increase the risk of another such error
occurring in the future.
73

Finally, we wish to dispel the notion that strict scrutiny is "strict in theory, but
fatal in fact." Fullilove, supra, at 519, 100 S.Ct., at 2795 (Marshall, J.,
concurring in judgment). The unhappy persistence of both the practice and the
lingering effects of racial discrimination against minority groups in this country
is an unfortunate reality, and government is not disqualified from acting in
response to it. As recently as 1987, for example, every Justice of this Court
agreed that the Alabama Department of Public Safety's "pervasive, systematic,
and obstinate discriminatory conduct" justified a narrowly tailored race-based
remedy. See United States v. Paradise, 480 U.S., at 167, 107 S.Ct., at 1064
(plurality opinion of Brennan, J.); id., at 190, 107 S.Ct., at 1076 (STEVENS, J.,
concurring in judgment); id., at 196, 107 S.Ct., at 1079-1080 (O'CONNOR, J.,
dissenting). When race-based action is necessary to further a compelling
interest, such action is within constitutional constraints if it satisfies the
"narrow tailoring" test this Court has set out in previous cases.

IV
74

Because our decision today alters the playing field in some important respects,
we think it best to remand the case to the lower courts for further consideration
in light of the principles we have announced. The Court of Appeals, following
Metro Broadcasting and Fullilove, analyzed the case in terms of intermediate
scrutiny. It upheld the challenged statutes and regulations because it found
them to be "narrowly tailored to achieve [their] significant governmental
purpose of providing subcontracting opportunities for small disadvantaged
business enterprises." 16 F.3d, at 1547 (emphasis added). The Court of Appeals
did not decide the question whether the interests served by the use of
subcontractor compensation clauses are properly described as "compelling." It
also did not address the question of narrow tailoring in terms of our strict
scrutiny cases, by asking, for example, whether there was "any consideration of
the use of race-neutral means to increase minority business participation" in
government contracting, Croson, supra, at 507, 109 S.Ct., at 729, or whether
the program was appropriately limited such that it "will not last longer than the
discriminatory effects it is designed to eliminate," Fullilove, supra, at 513, 100
S.Ct., at 2792-2793 (Powell, J., concurring).

75

Moreover, unresolved questions remain concerning the details of the complex


regulatory regimes implicated by the use of subcontractor compensation
clauses. For example, the SBA's 8(a) program requires an individual- ized
inquiry into the economic disadvantage of every participant, see 13 CFR
124.106(a) (1994), whereas the DOT's regulations implementing STURAA
106(c) do not require certifying authorities to make such individualized
inquiries, see 49 CFR 23.62 (1994); 49 CFR pt. 23, subpt. D, App. C (1994).
And the regulations seem unclear as to whether 8(d) subcontractors must make
individualized showings, or instead whether the race-based presumption applies
both to social and economic disadvantage, compare 13 CFR 124.106(b)
(apparently requiring 8(d) participants to make an individualized showing),
with 48 CFR 19.703(a)(2) (1994) (apparently allowing 8(d) subcontractors to
invoke the race-based presumption for social and economic disadvantage). See
generally Part I, supra. We also note an apparent discrepancy between the
definitions of which socially disadvantaged individuals qualify as economically
disadvantaged for the 8(a) and 8(d) programs; the former requires a showing
that such individuals' ability to compete has been impaired "as compared to
others in the same or similar line of business who are not socially
disadvantaged," 13 CFR 124.106(a)(1)(i) (1994) (emphasis added), while the
latter requires that showing only "as compared to others in the same or similar
line of business," 124.106(b)(1). The question whether any of the ways in
which the Government uses subcontractor compensation clauses can survive

strict scrutiny, and any relevance distinctions such as these may have to that
question, should be addressed in the first instance by the lower courts.
76

Accordingly, the judgment of the Court of Appeals is vacated, and the case is
remanded for further proceedings consistent with this opinion.

77

It is so ordered.

78

Justice SCALIA, concurring in part and concurring in the judgment.

79

I join the opinion of the Court, except Part III-C, and except insofar as it may
be inconsistent with the following: In my view, government can never have a
"compelling interest" in discriminating on the basis of race in order to "make
up" for past racial discrimination in the opposite direction. See Richmond v.
J.A. Croson Co., 488 U.S. 469, 520, 109 S.Ct. 706, 735-736, 102 L.Ed.2d 854
(1989) (SCALIA, J., concurring in judgment). Individuals who have been
wronged by unlawful racial discrimination should be made whole; but under
our Constitution there can be no such thing as either a creditor or a debtor race.
That concept is alien to the Constitution's focus upon the individual, see Amdt.
14, 1 ("[N]or shall any State . . . deny to any person" the equal protection of
the laws) (emphasis added), and its rejection of dispositions based on race, see
Amdt. 15, 1 (prohibiting abridgment of the right to vote "on account of race")
or based on blood, see Art. III, 3 ("[N]o Attainder of Treason shall work
Corruption of Blood"); Art. I, 9 ("No Title of Nobility shall be granted by the
United States"). To pursue the concept of racial entitlementeven for the most
admirable and benign of purposesis to reinforce and preserve for future
mischief the way of thinking that produced race slavery, race privilege and race
hatred. In the eyes of government, we are just one race here. It is American.

80

It is unlikely, if not impossible, that the challenged program would survive


under this understanding of strict scrutiny, but I am content to leave that to be
decided on remand.

81

Justice THOMAS, concurring in part and concurring in the judgment.

82

I agree with the majority's conclusion that strict scrutiny applies to all
government classifications based on race. I write separately, however, to
express my disagreement with the premise underlying Justice STEVENS' and
Justice GINSBURG's dissents: that there is a racial paternalism exception to the
principle of equal protection. I believe that there is a "moral [and] constitutional
equivalence," post, at ____ (STEVENS, J., dissenting), between laws designed

to subjugate a race and those that distribute benefits on the basis of race in
order to foster some current notion of equality. Government cannot make us
equal; it can only recognize, respect, and protect us as equal before the law.
83

That these programs may have been motivated, in part, by good intentions
cannot provide refuge from the principle that under our Constitution, the
government may not make distinctions on the basis of race. As far as the
Constitution is concerned, it is irrelevant whether a government's racial
classifications are drawn by those who wish to oppress a race or by those who
have a sincere desire to help those thought to be disadvantaged. There can be no
doubt that the paternalism that appears to lie at the heart of this program is at
war with the principle of inherent equality that underlies and infuses our
Constitution. See Declaration of Independence ("We hold these truths to be
self-evident, that all men are created equal, that they are endowed by their
Creator with certain unalienable Rights, that among these are Life, Liberty, and
the pursuit of Happiness").

84

These programs not only raise grave constitutional questions, they also
undermine the moral basis of the equal protection principle. Purchased at the
price of immeasurable human suffering, the equal protection principle reflects
our Nation's understanding that such classifications ultimately have a
destructive impact on the individual and our society. Unquestionably, "
[i]nvidious [racial] discrimination is an engine of oppression," post, at ____. It
is also true that "[r]emedial" racial preferences may reflect "a desire to foster
equality in society," ibid. But there can be no doubt that racial paternalism and
its unintended consequences can be as poisonous and pernicious as any other
form of discrimination. So-called "benign" discrimination teaches many that
because of chronic and apparently immutable handicaps, minorities cannot
compete with them without their patronizing indulgence. Inevitably, such
programs engender attitudes of superiority or, alternatively, provoke resentment
among those who believe that they have been wronged by the government's use
of race. These programs stamp minorities with a badge of inferiority and may
cause them to develop dependencies or to adopt an attitude that they are
"entitled" to preferences. Indeed, Justice STEVENS once recognized the real
harms stemming from seemingly "benign" discrimination. See Fullilove v.
Klutznick, 448 U.S. 448, 545, 100 S.Ct. 2758, 2809, 65 L.Ed.2d 902 (1980)
(STEVENS, J., dissenting) (noting that "remedial" race legislation "is perceived
by many as resting on an assumption that those who are granted this special
preference are less qualified in some respect that is identified purely by their
race").

85

In my mind, government-sponsored racial discrimination based on benign

prejudice is just as noxious as discrimination inspired by malicious prejudice.*


In each instance, it is racial discrimination, plain and simple.
86

Justice STEVENS, with whom Justice GINSBURG joins, dissenting.

87

Instead of deciding this case in accordance with controlling precedent, the


Court today delivers a disconcerting lecture about the evils of governmental
racial classifications. For its text the Court has selected three propositions,
represented by the bywords "skepticism," "consistency," and "congruence." See
ante, at ____. I shall comment on each of these propositions, then add a few
words about stare decisis, and finally explain why I believe this Court has a
duty to affirm the judgment of the Court of Appeals.

88

* The Court's concept of skepticism is, at least in principle, a good statement of


law and of common sense. Undoubtedly, a court should be wary of a
governmental decision that relies upon a racial classification. "Because racial
characteristics so seldom provide a relevant basis for disparate treatment, and
because classifications based on race are potentially so harmful to the entire
body politic," a reviewing court must satisfy itself that the reasons for any such
classification are "clearly identified and unquestionably legitimate." Fullilove v.
Klutznick, 448 U.S. 448, 533-535, 100 S.Ct. 2758, 2804, 65 L.Ed.2d 902 (1980)
(STEVENS, J., dissenting). This principle is explicit in Chief Justice Burger's
opinion, id., at 480, 100 S.Ct., at 2775-2776; in Justice Powell's concurrence,
id., at 496, 100 S.Ct., at 2783-2784; and in my dissent in Fullilove, id., at 533534, 100 S.Ct., at 2803-2804. I welcome its renewed endorsement by the Court
today. But, as the opinions in Fullilove demonstrate, substantial agreement on
the standard to be applied in deciding difficult cases does not necessarily lead to
agreement on how those cases actually should or will be resolved. In my
judgment, because uniform standards are often anything but uniform, we
should evaluate the Court's comments on "consistency," "congruence," and
stare decisis with the same type of skepticism that the Court advocates for the
underlying issue.

II
89

The Court's concept of "consistency" assumes that there is no significant


difference between a decision by the majority to impose a special burden on the
members of a minority race and a decision by the majority to provide a benefit
to certain members of that minority notwithstanding its incidental burden on
some members of the majority. In my opinion that assumption is untenable.
There is no moral or constitutional equivalence between a policy that is
designed to perpetuate a caste system and one that seeks to eradicate racial

subordination. Invidious discrimination is an engine of oppression, subjugating


a disfavored group to enhance or maintain the power of the majority. Remedial
race-based preferences reflect the opposite impulse: a desire to foster equality
in society. No sensible conception of the Government's constitutional
obligation to "govern impartially," Hampton v. Mow Sun Wong, 426 U.S. 88,
100, 96 S.Ct. 1895, 1903, 48 L.Ed.2d 495 (1976), should ignore this
distinction. 1
90

To illustrate the point, consider our cases addressing the Federal Government's
discrimination against Japanese Americans during World War II, Hirabayashi
v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943), and
Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944).
The discrimination at issue in those cases was invidious because the
Government imposed special burdensa curfew and exclusion from certain
areas on the West Coast2 on the members of a minority class defined by racial
and ethnic characteristics. Members of the same racially defined class exhibited
exceptional heroism in the service of our country during that War. Now
suppose Congress decided to reward that service with a federal program that
gave all Japanese-American veterans an extraordinary preference in
Government employment. Cf. Personnel Administrator of Mass. v. Feeney, 442
U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). If Congress had done so, the
same racial characteristics that motivated the discriminatory burdens in
Hirabayashi and Korematsu would have defined the preferred class of veterans.
Nevertheless, "consistency" surely would not require us to describe the
incidental burden on everyone else in the country as "odious" or "invidious" as
those terms were used in those cases. We should reject a concept of
"consistency" that would view the special preferences that the National
Government has provided to Native Americans since 18343 as comparable to
the official discrimination against African Americans that was prevalent for
much of our history.

91

The consistency that the Court espouses would disregard the difference
between a "No Trespassing" sign and a welcome mat. It would treat a Dixiecrat
Senator's decision to vote against Thurgood Marshall's confirmation in order to
keep African Americans off the Supreme Court as on a par with President
Johnson's evaluation of his nominee's race as a positive factor. It would equate
a law that made black citizens ineligible for military service with a program
aimed at recruiting black soldiers. An attempt by the majority to exclude
members of a minority race from a regulated market is fundamentally different
from a subsidy that enables a relatively small group of newcomers to enter that
market. An interest in "consistency" does not justify treating differences as
though they were similarities.

92

The Court's explanation for treating dissimilar race-based decisions as though


they were equally objectionable is a supposed inability to differentiate between
"invidious" and "benign" discrimination. Ante, at ____. But the term
"affirmative action" is common and well understood. Its presence in everyday
parlance shows that people understand the difference between good intentions
and bad. As with any legal concept, some cases may be difficult to classify,4
but our equal protection jurisprudence has identified a critical difference
between state action that imposes burdens on a disfavored few and state action
that benefits the few "in spite of" its adverse effects on the many. Feeney, 442
U.S., at 279, 99 S.Ct., at 2296.

93

Indeed, our jurisprudence has made the standard to be applied in cases of


invidious discrimination turn on whether the discrimination is "intentional," or
whether, by contrast, it merely has a discriminatory "effect." Washington v.
Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Surely this
distinction is at least as subtle, and at least as difficult to apply, see id., at 253254, 96 S.Ct., at 2054 (concurring opinion), as the usually obvious distinction
between a measure intended to benefit members of a particular minority race
and a measure intended to burden a minority race. A state actor inclined to
subvert the Constitution might easily hide bad intentions in the guise of
unintended "effects"; but I should think it far more difficult to enact a law
intending to preserve the majority's hegemony while casting it plausibly in the
guise of affirmative action for minorities.

94

Nothing is inherently wrong with applying a single standard to fundamentally


different situations, as long as that standard takes relevant differences into
account. For example, if the Court in all equal protection cases were to insist
that differential treatment be justified by relevant characteristics of the members
of the favored and disfavored classes that provide a legitimate basis for
disparate treatment, such a standard would treat dissimilar cases differently
while still recognizing that there is, after all, only one Equal Protection Clause.
See Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 451-455, 105 S.Ct.
3249, 3260-3262, 87 L.Ed.2d 313 (1985) (STEVENS, J., concurring); San
Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 98-110, 93 S.Ct.
1278, 1329-1336, 36 L.Ed.2d 16 (1973) (Marshall, J., dissenting). Under such a
standard, subsidies for disadvantaged businesses may be constitutional though
special taxes on such businesses would be invalid. But a single standard that
purports to equate remedial preferences with invidious discrimination cannot be
defended in the name of "equal protection."

95

Moreover, the Court may find that its new "consistency" approach to racebased classifications is difficult to square with its insistence upon rigidly

separate categories for discrimination against different classes of individuals.


For example, as the law currently stands, the Court will apply "intermediate
scrutiny" to cases of invidious gender discrimination and "strict scrutiny" to
cases of invidious race discrimination, while applying the same standard for
benign classifications as for invidious ones. If this remains the law, then
today's lecture about "consistency" will produce the anomalous result that the
Government can more easily enact affirmative-action programs to remedy
discrimination against women than it can enact affirmative-action programs to
remedy discrimination against African Americanseven though the primary
purpose of the Equal Protection Clause was to end discrimination against the
former slaves. See Associated General Contractors of Cal., Inc. v. San
Francisco, 813 F.2d 922 (CA9 1987) (striking down racial preference under
strict scrutiny while upholding gender preference under intermediate scrutiny).
When a court becomes preoccupied with abstract standards, it risks sacrificing
common sense at the altar of formal consistency.
96

As a matter of constitutional and democratic principle, a decision by


representatives of the majority to discriminate against the members of a
minority race is fundamentally different from those same representatives'
decision to impose incidental costs on the majority of their constituents in order
to provide a benefit to a disadvantaged minority.5 Indeed, as I have previously
argued, the former is virtually always repugnant to the principles of a free and
democratic society, whereas the latter is, in some circumstances, entirely
consistent with the ideal of equality. Wygant v. Jackson Board of Ed., 476 U.S.
267, 316-317, 106 S.Ct. 1842, 1869-70, 90 L.Ed.2d 260 (1986) (STEVENS, J.,
dissenting).6 By insisting on a doctrinaire notion of "con- sistency" in the
standard applicable to all race-based governmental actions, the Court obscures
this essential dichotomy.

III
97

The Court's concept of "congruence" assumes that there is no significant


difference between a decision by the Congress of the United States to adopt an
affirmative-action program and such a decision by a State or a municipality. In
my opinion that assumption is untenable. It ignores important practical and
legal differences between federal and state or local decisionmakers.

98

These differences have been identified repeatedly and consistently both in


opinions of the Court and in separate opinions authored by members of today's
majority. Thus, in Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 110 S.Ct.
2997, 111 L.Ed.2d 445 (1990), in which we upheld a federal program designed
to foster racial diversity in broadcasting, we identified the special "institutional

competence" of our National Legislature. Id., at 563, 110 S.Ct., at 3008. "It is
of overriding significance in these cases," we were careful to emphasize, "that
the FCC's minority ownership programs have been specifically approved
indeed, mandated by Congress." Ibid. We recalled the several opinions in
Fullilove that admonished this Court to " 'approach our task with appropriate
deference to the Congress, a co-equal branch charged by the Constitution with
the power to "provide for the . . . general Welfare of the United States" and "to
enforce, by appropriate legislation," the equal protection guarantees of the
Fourteenth Amendment.' [Fullilove, 448 U.S.], at 472 [100 S.Ct., at 2771]; see
also id., at 491 [100 S.Ct., at 2781]; id., at 510, and 515-516, n. 14 [100 S.Ct.,
at 2791, 2794, n. 14] (Powell, J., concurring); id., at 517-520 [100 S.Ct., at
2794-2796] (MARSHALL, J., concurring in judgment)." Id., at 563, 110 S.Ct.,
at 3008. We recalled that the opinions of Chief Justice Burger and Justice
Powell in Fullilove had "explained that deference was appropriate in light of
Congress' institutional competence as the National Legislature, as well as
Congress' powers under the Commerce Clause, the Spending Clause, and the
Civil War Amendments." Ibid. (citations and footnote omitted).
99

The majority in Metro Broadcasting and the plurality in Fullilove were not
alone in relying upon a critical distinction between federal and state programs.
In his separate opinion in Richmond v. J.A. Croson Co., 488 U.S. 469, 520-524,
109 S.Ct. 706, 735-738, 102 L.Ed.2d 854 (1989), Justice SCALIA discussed
the basis for this distinction. He observed that "it is one thing to permit racially
based conduct by the Federal Governmentwhose legislative powers
concerning matters of race were explicitly enhanced by the Fourteenth
Amendment, see U.S. Const., Amdt. 14, 5and quite another to permit it by
the precise entities against whose conduct in matters of race that Amendment
was specifically directed, see Amdt. 14, 1." Id., at 521-522, 109 S.Ct., at 736.
Continuing, Justice SCALIA explained why a "sound distinction between
federal and state (or local) action based on race rests not only upon the
substance of the Civil War Amendments, but upon social reality and
governmental theory." Id., at 522, 109 S.Ct., at 737.

100 "What the record shows, in other words, is that racial discrimination against any
group finds a more ready expression at the state and local than at the federal
level. To the children of the Founding Fathers, this should come as no surprise.
An acute awareness of the heightened danger of oppression from political
factions in small, rather than large, political units dates to the very beginning of
our national history. See G. Wood, The Creation of the American Republic,
1776-1787, pp. 499-506 (1969). As James Madison observed in support of the
proposed Constitution's enhancement of national powers:

101 " 'The smaller the society, the fewer probably will be the distinct parties and
interests composing it; the fewer the distinct parties and interests, the more
frequently will a majority be found of the same party; and the smaller the
number of individuals composing a majority, and the smaller the compass
within which they are placed, the more easily will they concert and execute
their plan of oppression. Extend the sphere and you take in a greater variety of
parties and interests; you make it less probable that a majority of the whole will
have a common motive to invade the rights of other citizens; or if such a
common motive exists, it will be more difficult for all who feel it to discover
their own strength and to act in unison with each other.' The Federalist No. 10,
pp. 82-84 (C. Rossiter ed. 1961)." Id., at 523 (SCALIA, J., concurring in
judgment).
102 In her plurality opinion in Croson, Justice O'CONNOR also emphasized the
importance of this distinction when she responded to the City's argument that
Fullilove was controlling. She wrote:
103 "What appellant ignores is that Congress, unlike any State or political
subdivision, has a specific constitutional mandate to enforce the dictates of the
Fourteenth Amendment. The power to 'enforce' may at times also include the
power to define situations which Congress determines threaten principles of
equality and to adopt prophylactic rules to deal with those situations. The Civil
War Amendments themselves worked a dramatic change in the balance
between congressional and state power over matters of race." 488 U.S., at 490,
109 S.Ct., at 720 (plurality opinion of O'Connor, J., joined by Rehnquist, C.J.,
and White, J.) (citations omitted).
104 An additional reason for giving greater deference to the National Legislature
than to a local law-making body is that federal affirmative-action programs
represent the will of our entire Nation's elected representatives, whereas a state
or local program may have an impact on nonresident entities who played no
part in the decision to enact it. Thus, in the state or local context, individuals
who were unable to vote for the local representatives who enacted a raceconscious program may nonetheless feel the effects of that program. This
difference recalls the goals of the Commerce Clause, U.S. Const., Art. I, 8, cl.
3, which permits Congress to legislate on certain matters of national importance
while denying power to the States in this area for fear of undue impact upon
out-of-state residents. See Southern Pacific Co. v. Arizona ex rel. Sullivan, 325
U.S. 761, 767-768, n. 2, 65 S.Ct. 1515, 1519-1520, n. 2, 89 L.Ed. 1915 (1945)
("[T]o the extent that the burden of state regulation falls on interests outside the
state, it is unlikely to be alleviated by the operation of those political restraints

normally exerted when interests within the state are affected").


105 Ironically, after all of the time, effort, and paper this Court has expended in
differentiating between federal and state affirmative action, the majority today
virtually ignores the issue. See ante, at ____. It provides not a word of direct
explanation for its sudden and enormous departure from the reasoning in past
cases. Such silence, however, cannot erase the difference between Congress'
institutional competence and constitutional authority to overcome historic racial
subjugation and the States' lesser power to do so.
106 Presumably, the majority is now satisfied that its theory of "congruence"
between the substantive rights provided by the Fifth and Fourteenth
Amendments disposes of the objection based upon divided constitutional
powers. But it is one thing to say (as no one seems to dispute) that the Fifth
Amendment encompasses a general guarantee of equal protection as broad as
that contained within the Fourteenth Amendment. It is another thing entirely to
say that Congress' institutional competence and constitutional authority entitles
it to no greater deference when it enacts a program designed to foster equality
than the deference due a State legislature.7 The latter is an extraordinary
proposition; and, as the foregoing discussion demonstrates, our precedents have
rejected it explicitly and repeatedly. 8
107 Our opinion in Metro Broadcasting relied on several constitutional provisions
to justify the greater deference we owe to Congress when it acts with respect to
private individuals. 497 U.S., at 563, 110 S.Ct., at 3008. In the programs
challenged in this case, Congress has acted both with respect to private
individuals and, as in Fullilove, with respect to the States themselves.9 When
Congress does this, it draws its power directly from 5 of the Four- teenth
Amendment.10 That section reads: "The Congress shall have power to enforce,
by appropriate legislation, the provisions of this article." One of the "provisions
of this article" that Congress is thus empowered to enforce reads: "No State
shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws." U.S. Const., Amdt. 14, 1.
The Fourteenth Amendment directly empowers Congress at the same time it
expressly limits the States. 11 This is no accident. It represents our Nation's
consensus, achieved after hard experience throughout our sorry history of race
relations, that the Federal Government must be the primary defender of racial
minorities against the States, some of which may be inclined to oppress such
minorities. A rule of "congruence" that ignores a purposeful "incongruity" so
fundamental to our system of government is unacceptable.

108 In my judgment, the Court's novel doctrine of "congruence" is seriously


misguided. Congressional deliberations about a matter as important as
affirmative action should be accorded far greater deference than those of a State
or municipality.
IV
109 The Court's concept of stare decisis treats some of the language we have used
in explaining our decisions as though it were more important than our actual
holdings. In my opinion that treatment is incorrect.
110 This is the third time in the Court's entire history that it has considered the
constitutionality of a federal affirmative-action program. On each of the two
prior occasions, the first in 1980, Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct.
2758, 65 L.Ed.2d 902 and the second in 1990, Metro Broadcasting, Inc. v.
FCC, 497 U.S. 547, 110 S.Ct. 2997, 111 L.Ed.2d 445, the Court upheld the
program. Today the Court explicitly overrules Metro Broadcasting (at least in
part), ante, at ____, and undermines Fullilove by recasting the standard on
which it rested and by calling even its holding into question, ante, at ____. By
way of explanation, Justice O'CONNOR advises the federal agencies and
private parties that have made countless decisions in reliance on those cases
that "we do not depart from the fabric of the law; we restore it." Ante, at ____.
A skeptical observer might ask whether this pronouncement is a faithful
application of the doctrine of stare decisis. 12 A brief comment on each of the
two ailing cases may provide the answer.
111 In the Court's view, our decision in Metro Broadcasting was inconsistent with
the rule announced in Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct.
706, 102 L.Ed.2d 854 (1989). Ante, at ____. But two decisive distinctions
separate those two cases. First, Metro Broadcasting involved a federal program,
whereas Croson involved a city ordinance. Metro Broadcasting thus drew
primary support from Fullilove, which predated Croson and which Croson
distinguished on the grounds of the federal-state dichotomy that the majority
today discredits. Although members of today's majority trumpeted the
importance of that distinction in Croson, they now reject it in the name of
"congruence." It is therefore quite wrong for the Court to suggest today that
overruling Metro Broadcasting merely restores the status quo ante, for the law
at the time of that decision was entirely open to the result the Court reached.
Today's decision is an unjustified departure from settled law.
112 Second, Metro Broadcasting's holding rested on more than its application of
"intermediate scrutiny." Indeed, I have always believed that, labels

notwithstanding, the FCC program we upheld in that case would have satisfied
any of our various standards in affirmative-action casesincluding the one the
majority fashions today. What truly distinguishes Metro Broadcasting from our
other affirmative-action precedents is the distinctive goal of the federal
program in that case. Instead of merely seeking to remedy past discrimination,
the FCC program was intended to achieve future benefits in the form of
broadcast diversity. Reliance on race as a legitimate means of achieving
diversity was first endorsed by Justice Powell in Regents of Univ. of California
v. Bakke, 438 U.S. 265, 311-319, 98 S.Ct. 2733, 2759-2763, 57 L.Ed.2d 750
(1978). Later, in Wygant v. Jackson Board of Ed., 476 U.S. 267, 106 S.Ct.
1842, 90 L.Ed.2d 260 (1986), I also argued that race is not always irrelevant to
governmental decisionmaking, see id., at 314-315, 98 S.Ct., at 2760-61
(STEVENS, J., dissenting); in response, Justice O'CONNOR correctly noted
that, although the School Board had relied on an interest in providing black
teachers to serve as role models for black students, that interest "should not be
confused with the very different goal of promoting racial diversity among the
faculty." Id., at 288, n., 106 S.Ct., at 1854, n. She then added that, because the
school board had not relied on an interest in diversity, it was not "necessary to
discuss the magnitude of that interest or its applicability in this case." Ibid.
113 Thus, prior to Metro Broadcasting, the interest in diversity had been mentioned
in a few opinions, but it is perfectly clear that the Court had not yet decided
whether that interest had sufficient magnitude to justify a racial classification.
Metro Broadcasting, of course, answered that question in the affirmative. The
majority today overrules Metro Broadcasting only insofar as it is "inconsistent
with [the] holding" that strict scrutiny applies to "benign" racial classifications
promulgated by the Federal Government. Ante, at ____. The proposition that
fostering diversity may provide a sufficient interest to justify such a program is
not inconsistent with the Court's holding today indeed, the question is not
remotely presented in this caseand I do not take the Court's opinion to
diminish that aspect of our decision in Metro Broadcasting.
114 The Court's suggestion that it may be necessary in the future to overrule
Fullilove in order to restore the fabric of the law, ante, at ____, is even more
disingenuous than its treatment of Metro Broadcasting. For the Court endorses
the "strict scrutiny" standard that Justice Powell applied in Bakke, see ante, at
____, and acknowledges that he applied that standard in Fullilove as well, ante,
at ____. Moreover, Chief Justice Burger also expressly concluded that the
program we considered in Fullilove was valid under any of the tests articulated
in Bakke, which of course included Justice Powell's. 448 U.S., at 492, 100
S.Ct., at 2781-82. The Court thus adopts a standard applied in Fullilove at the
same time it questions that case's continued vitality and accuses it of departing

from prior law. I continue to believe that the Fullilove case was incorrectly
decided, see id., at 532-554, 100 S.Ct., at 2802-2814 (STEVENS, J., dissenting), but neither my dissent nor that filed by Justice Stewart, id., at 522-532,
100 S.Ct., at 2797-2803, contained any suggestion that the issue the Court was
resolving had been decided before.13 As was true of Metro Broadcasting, the
Court in Fullilove decided an important, novel, and difficult question.
Providing a different answer to a similar question today cannot fairly be
characterized as merely "restoring" previously settled law.
V
115 The Court's holding in Fullilove surely governs the result in this case. The
Public Works Employment Act of 1977 (1977 Act), 91 Stat. 116, which this
Court upheld in Fullilove, is different in several critical respects from the
portions of the Small Business Act (SBA), 72 Stat. 384, as amended, 15 U.S.C.
631 et seq., and the Surface Transportation and Uniform Relocation
Assistance Act of 1987 (STURAA), 101 Stat. 132, challenged in this case. Each
of those differences makes the current program designed to provide assistance
to disadvantaged business enterprises (DBE's) significantly less objectionable
than the 1977 categorical grant of $400 million in exchange for a 10% set-aside
in public contracts to "a class of investors defined solely by racial
characteristics." Fullilove, 448 U.S., at 532, 100 S.Ct., at 2803 (STEVENS, J.,
dissenting). In no meaningful respect is the current scheme more objectionable
than the 1977 Act. Thus, if the 1977 Act was constitutional, then so must be the
SBA and STURAA. Indeed, even if my dissenting views in Fullilove had
prevailed, this program would be valid.
116 Unlike the 1977 Act, the present statutory scheme does not make race the sole
criterion of eligibility for participation in the program. Race does give rise to a
rebuttable presumption of social disadvantage which, at least under STURAA,14
gives rise to a second rebuttable presumption of economic disadvantage. 49
CFR 23.62 (1994). But a small business may qualify as a DBE, by showing
that it is both socially and economically disadvantaged, even if it receives
neither of these presumptions. 13 CFR 124.105(c), 124.106 (1995); 48 CFR
19.703 (1994); 49 CFR pt. 23, subpt. D., Appendixes A and C (1994). Thus,
the current preference is more inclusive than the 1977 Act because it does not
make race a necessary qualification.
117 More importantly, race is not a sufficient qualification. Whereas a millionaire
with a long history of financial successes, who was a member of numerous
social clubs and trade associations, would have qualified for a preference under
the 1977 Act merely because he was an Asian American or an African

American, see Fullilove, 448 U.S., at 537-538, 540, 543-544, and n. 16, 546,
100 S.Ct., at 2805-2806, 2806-2807, 2808-2809, and n. 16, 2809-2810
(STEVENS, J., dissenting), neither the SBA nor STURAA creates any such
anomaly. The DBE program excludes members of minority races who are not,
in fact, socially or economically disadvantaged.15 13 CFR 124.106(a)(1)(ii)
(1995); 49 CFR 23.69 (1994). The presumption of social disadvantage
reflects the unfortunate fact that irrational racial prejudicealong with its
lingering effectsstill survives.16 The presumption of economic disadvantage
embodies a recognition that success in the private sector of the economy is
often attributable, in part, to social skills and relationships. Unlike the 1977 setasides, the current preference is designed to overcome the social and economic
disadvantages that are often associated with racial characteristics. If, in a
particular case, these disadvantages are not present, the presumptions can be
rebutted. 13 CFR 124.601-124.610 (1995); 49 CFR 23.69 (1994). The
program is thus designed to allow race to play a part in the decisional process
only when there is a meaningful basis for assuming its relevance. In this
connection, I think it is particularly significant that the current program targets
the negotiation of subcontracts between private firms. The 1977 Act applied
entirely to the award of public contracts, an area of the economy in which
social relationships should be irrelevant and in which proper supervision of
government contracting officers should preclude any discrimination against
particular bidders on account of their race. In this case, in contrast, the program
seeks to overcome barriers of prejudice between private partiesspecifically,
between general contractors and subcontractors. The SBA and STURAA
embody Congress' recognition that such barriers may actually handicap
minority firms seeking business as subcontractors from established leaders in
the industry that have a history of doing business with their golfing partners.
Indeed, minority subcontractors may face more obstacles than direct,
intentional racial prejudice: they may face particular barriers simply because
they are more likely to be new in the business and less likely to know others in
the business. Given such difficulties, Congress could reasonably find that a
minority subcontractor is less likely to receive favors from the entrenched
businesspersons who award subcontracts only to people with whomor with
whose friendsthey have an existing relationship. This program, then, if in
part a remedy for past discrimination, is most importantly a forward-looking
response to practical problems faced by minority subcontractors.
118 The current program contains another forward-looking component that the
1977 set-asides did not share. Section 8(a) of the SBA provides for periodic
review of the status of DBE's, 15 U.S.C. 637(a)(1)(B)-(C) (1988 ed., Supp.
V); 13 CFR 124.602(a) (1995),17 and DBE status can be challenged by a
competitor at any time under any of the routes to certification. 13 CFR

124.603 (1995); 49 CFR 23.69 (1994). Such review prevents ineligible firms
from taking part in the program solely because of their minority ownership,
even when those firms were once disadvantaged but have since become
successful. The emphasis on review also indicates the Administration's
anticipation that after their presumed disadvantages have been overcome, firms
will "graduate" into a status in which they will be able to compete for business,
including prime contracts, on an equal basis. 13 CFR 124.208 (1995). As with
other phases of the statutory policy of encouraging the formation and growth of
small business enterprises, this program is intended to facilitate entry and
increase competition in the free market.
119 Significantly, the current program, unlike the 1977 set-aside, does not establish
any requirementnumerical or otherwisethat a general contractor must hire
DBE subcontractors. The program we upheld in Fullilove required that 10% of
the federal grant for every federally funded project be expended on minority
business enterprises. In contrast, the current program contains no quota.
Although it provides monetary incentives to general contractors to hire DBE
subcontractors, it does not require them to hire DBE's, and they do not lose their
contracts if they fail to do so. The importance of this incentive to general
contractors (who always seek to offer the lowest bid) should not be
underestimated; but the preference here is far less rigid, and thus more
narrowly tailored, than the 1977 Act. Cf. Bakke, 438 U.S., at 319-320, 98 S.Ct.,
at 2763-2764 (opinion of Powell, J.) (distinguishing between numerical setasides and consideration of race as a factor).
120 Finally, the record shows a dramatic contrast between the sparse deliberations
that preceded the 1977 Act, see Fullilove, 448 U.S., at 549-550, 100 S.Ct., at
2811-2812 (STEVENS, J., dissenting), and the extensive hearings conducted in
several Congresses before the current program was developed. 18 However we
might evaluate the benefits and costsboth fiscal and social of this or any
other affirmative-action program, our obligation to give deference to Congress'
policy choices is much more demanding in this case than it was in Fullilove. If
the 1977 program of race-based set-asides satisfied the strict scrutiny dictated
by Justice Powell's vision of the Constitutiona vision the Court expressly
endorses todayit must follow as night follows the day that the Court of
Appeals' judgment upholding this more carefully crafted program should be
affirmed.
VI
121 My skeptical scrutiny of the Court's opinion leaves me in dissent. The
majority's concept of "consistency" ignores a difference, fundamental to the

idea of equal protection, between oppression and assistance. The majority's


concept of "congruence" ignores a difference, fundamental to our constitutional
system, between the Federal Government and the States. And the majority's
concept of stare decisis ignores the force of binding precedent. I would affirm
the judgment of the Court of Appeals.
122 Justice SOUTER, with whom Justice GINSBURG and Justice BREYER join,
dissenting.
123 As this case worked its way through the federal courts prior to the grant of
certiorari that brought it here, petitioner Adarand Constructors, Inc. was
understood to have raised only one significant claim: that before a federal
agency may exceed the goals adopted by Congress in implementing a racebased remedial program, the Fifth and Fourteenth Amendments require the
agency to make specific findings of discrimination, as under Richmond v. J.A.
Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), sufficient to
justify surpassing the congressional objective. See 16 F.3d 1537, 1544 (CA10
1994) ("The gravamen of Adarand's argument is that the CFLHD must make
particularized findings of past discrimination to justify its race-conscious SCC
program under Croson because the precise goals of the challenged SCC
program were fashioned and specified by an agency and not by Congress");
Adarand Constructors, Inc. v. Skinner, 790 F.Supp. 240, 242 (Colo.1992)
("Plaintiff's motion for summary judgment seeks a declaratory judgment and
permanent injunction against the DOT, the FHA and the CFLHD until specific
findings of discrimination are made by the defendants as allegedly required by
City of Richmond v. Croson "); cf. Complaint 28, App. 20 (federal regulations
violate the Fourteenth and Fifteenth Amendments by requiring "the use of
racial and gender preferences in the award of federally financed highway
construction contracts, without any findings of past discrimination in the award
of such contracts").
124 Although the petition for certiorari added an antecedent question challenging
the use, under the Fifth and Fourteenth Amendments, of any standard below
strict scrutiny to judge the constitutionality of the statutes under which the
respondents acted, I would not have entertained that question in this case. The
statutory scheme must be treated as constitutional if Fullilove v. Klutznick, 448
U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), is applied, and petitioners did
not identify any of the factual premises on which Fullilove rested as having
disappeared since that case was decided.
125 As the Court's opinion explains in detail, the scheme in question provides
financial incentives to general contractors to hire subcontractors who have been

certified as disadvantaged business enterprises on the basis of certain race-based


presumptions. See generally ante, at ____. These statutes (or the originals, of
which the current ones are reenactments) have previously been justified as
providing remedies for the continuing effects of past discrimination, see, e.g.,
Fullilove, supra, at 465-466, 100 S.Ct., at 2768 (citing legislative history
describing SBA 8(a) as remedial); S.Rep. No. 100-4, p. 11 (1987) U.S.Code
Cong. & Admin.News 1987, pp. 66, 76 (Committee Report stating that DBE
provision of STURAA was "necessary to remedy the discrimination faced by
socially and economically disadvantaged persons"), and the Government has so
defended them in this case, Brief for Respondents 33. Since petitioner has not
claimed the obsolescence of any particular fact on which the Fullilove Court
upheld the statute, no issue has come up to us that might be resolved in a way
that would render Fullilove inapposite. See, e.g., 16 F.3d, at 1544 ("Adarand
has stipulated that section 502 of the Small Business Act . . . satisfies the
evidentiary requirements of Fullilove "); Memorandum of Points and
Authorities in Support of Plaintiff's Motion for Summary Judgment in No. 90C-1413 (D.Colo.), p. 12 (Fullilove is not applicable to the case at bar because "
[f]irst and foremost, Fullilove stands for only one proposition relevant here: the
ability of the U.S. Congress, under certain limited circumstances, to adopt a
race-base[d] remedy").
126 In these circumstances, I agree with Justice STEVENS's conclusion that stare
decisis compels the application of Fullilove. Although Fullilove did not reflect
doctrinal consistency, its several opinions produced a result on shared grounds
that petitioner does not attack: that discrimination in the construction industry
had been subject to government acquiescence, with effects that remain and that
may be addressed by some preferential treatment falling within the
congressional power under 5 of the Fourteenth Amendment. 1 Fullilove, 448
U.S., at 477-478, 100 S.Ct., at 2774-2775 (opinion of Burger, C.J.); id., at 503,
100 S.Ct., at 2787 (Powell, J., concurring); id., at 520-521, 100 S.Ct., at 27962797 (Marshall, J., concurring in judgment). Once Fullilove is applied, as
Justice STEVENS points out, it follows that the statutes in question here (which
are substantially better tailored to the harm being remedied than the statute
endorsed in Fullilove, see ante, at ____ (STEVENS, J., dissenting)) pass
muster under Fifth Amendment due process and Fourteenth Amendment equal
protection.
127 The Court today, however, does not reach the application of Fullilove to the
facts of this case, and on remand it will be incumbent on the Government and
petitioner to address anew the facts upon which statutes like these must be
judged on the Government's remedial theory of justification: facts about the
current effects of past discrimination, the necessity for a preferential remedy,

and the suitability of this particular preferential scheme. Petitioner could, of


course, have raised all of these issues under the standard employed by the
Fullilove plurality, and without now trying to read the current congressional
evidentiary record that may bear on resolving these issues I have to recognize
the possibility that proof of changed facts might have rendered Fullilove's
conclusion obsolete as judged under the Fullilove plurality's own standard. Be
that as it may, it seems fair to ask whether the statutes will meet a different fate
from what Fullilove would have decreed. The answer is, quite probably not,
though of course there will be some interpretive forks in the road before the
significance of strict scrutiny for congressional remedial statutes becomes
entirely clear.
128 The result in Fullilove was controlled by the plurality for whom Chief Justice
Burger spoke in announcing the judgment. Although his opinion did not adopt
any label for the standard it applied, and although it was later seen as calling for
less than strict scrutiny, Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 564,
110 S.Ct. 2997, 3008, 111 L.Ed.2d 445 (1990), none other than Justice Powell
joined the plurality opinion as comporting with his own view that a strict
scrutiny standard should be applied to all injurious race-based classifications.
Fullilove, supra, at 495-496, 100 S.Ct., at 2783 (Powell, J., concurring)
("Although I would place greater emphasis than The CHIEF JUSTICE on the
need to articulate judicial standards of review in conventional terms, I view his
opinion announcing the judgment as substantially in accord with my views").
Chief Justice Burger's noncategorical approach is probably best seen not as
more lenient than strict scrutiny but as reflecting his conviction that the trebletiered scrutiny structure merely embroidered on a single standard of
reasonableness whenever an equal protection challenge required a balancing of
justification against probable harm. See Cleburne v. Cleburne Living Center,
Inc., 473 U.S. 432, 451, 105 S.Ct. 3249, 3260, 87 L.Ed.2d 313 (1985)
(STEVENS, J., concurring, joined by Burger, C.J.). Indeed, the Court's very
recognition today that strict scrutiny can be compatible with the survival of a
classification so reviewed demonstrates that our concepts of equal protection
enjoy a greater elasticity than the standard categories might suggest. See ante,
at ____ ("we wish to dispel the notion that strict scrutiny is 'strict in theory, but
fatal in fact.' Fullilove, supra, at 519 [100 S.Ct., at 2795-2796] (Marshall, J.,
concurring in judgment)"); see also Missouri v. Jenkins, post, at ____, --- S.Ct.,
at ---- (O'CONNOR, J., concurring) ("But it is not true that strict scrutiny is
'strict in theory, but fatal in fact' ").
129 In assessing the degree to which today's holding portends a departure from past
practice, it is also worth noting that nothing in today's opinion implies any view
of Congress's 5 power and the deference due its exercise that differs from the

views expressed by the Fullilove plurality. The Court simply notes the
observation in Croson "that the Court's 'treatment of an exercise of
congressional power in Fullilove cannot be dispositive here,' because Croson's
facts did not implicate Congress' broad power under 5 of the Fourteenth
Amendment," ante, at ____, and explains that there is disagreement among
today's majority about the extent of the 5 power, ante, at ____. There is
therefore no reason to treat the opinion as affecting one way or another the
views of 5 power, described as "broad," ante, at ____, "unique," Fullilove,
supra, at 500, 100 S.Ct., at 2786 (Powell, J., concurring), and "unlike [that of]
any state or political subdivision," Croson, 488 U.S., at 490, 109 S.Ct., at 720
(opinion of O'CONNOR, J.). See also Jenkins, post, at ----, --- S.Ct. at ---(O'CONNOR, J., concurring) ("Congress . . . enjoys ' "discretion in determining
whether and what legislation is needed to secure the guarantees of the
Fourteenth Amendment," ' Croson, 488 U.S., at 490, 109 S.Ct., at 720 (quoting
Katzenbach v. Morgan, 384 U.S., at 651 [86 S.Ct., at 1723] )"). Thus, today's
decision should leave 5 exactly where it is as the source of an interest of the
national government sufficiently important to satisfy the corresponding
requirement of the strict scrutiny test.
130 Finally, I should say that I do not understand that today's decision will
necessarily have any effect on the resolution of an issue that was just as
pertinent under Fullilove's unlabeled standard as it is under the standard of strict
scrutiny now adopted by the Court. The Court has long accepted the view that
constitutional authority to remedy past discrimination is not limited to the
power to forbid its continuation, but extends to eliminating those effects that
would otherwise persist and skew the operation of public systems even in the
absence of current intent to practice any discrimination. See Albemarle Paper
Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975)
("Where racial discrimination is concerned, 'the [district] court has not merely
the power but the duty to render a decree which will so far as possible eliminate
the discriminatory effects of the past as well as bar like discrimination in the
future,' ") quoting Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817,
822, 13 L.Ed.2d 709 (1965). This is so whether the remedial authority is
exercised by a court, see ibid.; Green v. School Board of New Kent County, 391
U.S. 430, 437, 88 S.Ct. 1689, 1693-1694, 20 L.Ed.2d 716 (1968), the Congress,
see Fullilove, 448 U.S., at 502, 100 S.Ct., at 2787 (Powell, J., concurring), or
some other legislature, see Croson, supra, 488 U.S., at 491-492, 109 S.Ct., at
720-721 (opinion of O'CONNOR, J.). Indeed, a majority of the Court today
reiterates that there are circumstances in which Government may, consistently
with the Constitution, adopt programs aimed at remedying the effects of past
invidious discrimination. See, e.g., ante, at ____ (opinion of O'CONNOR, J.);
id., at ____ (STEVENS, J., with whom GINSBURG, J., joins, dissenting); id.,

at ____, (GINSBURG, J., with whom BREYER, J. joins, dissenting); Jenkins,


post, at ----, --- S.Ct. at ---- (O'CONNOR, J., concurring) (noting the critical
difference "between unconstitutional discrimination and narrowly tailored
remedial programs that legislatures may enact to further the compelling
governmental interest in redressing the effects of past discrimination").
131 When the extirpation of lingering discriminatory effects is thought to require a
catch-up mechanism, like the racially preferential inducement under the
statutes considered here, the result may be that some members of the
historically favored race are hurt by that remedial mechanism, however
innocent they may be of any personal responsibility for any discriminatory
conduct. When this price is considered reasonable, it is in part because it is a
price to be paid only temporarily; if the justification for the preference is
eliminating the effects of a past practice, the assumption is that the effects will
themselves recede into the past, becoming attenuated and finally disappearing.
Thus, Justice Powell wrote in his concurring opinion in Fullilove that the
"temporary nature of this remedy ensures that a race-conscious program will
not last longer than the discriminatory effects it is designed to eliminate." 448
U.S., at 513, 100 S.Ct., at 2792-2793; ante, at ____ (opinion of the Court).
132 Surely the transition from the Fullilove plurality view (in which Justice Powell
joined) to today's strict scrutiny (which will presumably be applied as Justice
Powell employed it) does not signal a change in the standard by which the
burden of a remedial racial preference is to be judged as reasonable or not at
any given time. If in the District Court Adarand had chosen to press a challenge
to the reasonableness of the burden of these statutes,2 more than a decade after
Fullilove had examined such a burden, I doubt that the claim would have fared
any differently from the way it will now be treated on remand from this Court.
133 Justice GINSBURG, with whom Justice BREYER joins, dissenting.
134 For the reasons stated by Justice SOUTER, and in view of the attention the
political branches are currently giving the matter of affirmative action, I see no
compelling cause for the intervention the Court has made in this case. I further
agree with Justice STEVENS that, in this area, large deference is owed by the
Judiciary to "Congress' institutional competence and constitutional authority to
overcome historic racial subjugation." Ante, at ____ (STEVENS, J.,
dissenting); see id., at ____. 1 I write separately to underscore not the
differences the several opinions in this case display, but the considerable field
of agreementthe common understandings and concerns revealed in
opinions that together speak for a majority of the Court.

135 * The statutes and regulations at issue, as the Court indicates, were adopted by
the political branches in response to an "unfortunate reality": "[t]he unhappy
persistence of both the practice and the lingering effects of racial discrimination
against minority groups in this country." Ante, at ____ (lead opinion). The
United States suffers from those lingering effects because, for most of our
Nation's history, the idea that "we are just one race," ante, at ____ (SCALIA,
J., concurring in part and concurring in judgment), was not embraced. For
generations, our lawmakers and judges were unprepared to say that there is in
this land no superior race, no race inferior to any other. In Plessy v. Ferguson,
163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), not only did this Court
endorse the oppressive practice of race segregation, but even Justice Harlan,
the advocate of a "color-blind" Constitution, stated:
136 "The white race deems itself to be the dominant race in this country. And so it
is, in prestige, in achievements, in education, in wealth and in power. So, I
doubt not, it will continue to be for all time, if it remains true to its great
heritage and holds fast to the principles of constitutional liberty." Id., at 559, 16
S.Ct., at 1146 (Harlan, J., dissenting).
137 Not until Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010
(1967), which held unconstitutional Virginia's ban on interracial marriages,
could one say with security that the Constitu- tion and this Court would abide
no measure "designed to maintain White Supremacy." Id., at 11, 87 S.Ct., at
1823.2
138 The divisions in this difficult case should not obscure the Court's recognition of
the persistence of racial inequality and a majority's acknowledgement of
Congress' authority to act affirmatively, not only to end discrimination, but also
to counteract discrimination's lingering effects. Ante, at ____ (lead opinion);
see also ante, at ____ (SOUTER, J., dissenting). Those effects, reflective of a
system of racial caste only recently ended, are evident in our workplaces,
markets, and neighborhoods. Job applicants with identical resumes,
qualifications, and interview styles still experience different receptions,
depending on their race. 3 White and African-American consumers still
encounter different deals.4 People of color looking for housing still face
discriminatory treatment by landlords, real estate agents, and mortgage
lenders.5 Minority entrepreneurs sometimes fail to gain contracts though they
are the low bidders, and they are sometimes refused work even after winning
contracts.6 Bias both conscious and unconscious, reflecting traditional and
unexamined habits of thought, 7 keeps up barriers that must come down if equal
opportunity and nondiscrimination are ever genuinely to become this country's
law and practice.

139 Given this history and its practical consequences, Congress surely can conclude
that a carefully designed affirmative action program may help to realize,
finally, the "equal protection of the laws" the Fourteenth Amendment has
promised since 1868.8
II
140 The lead opinion uses one term, "strict scrutiny," to describe the standard of
judicial review for all governmental classifications by race. Ante, at ____. But
that opinion's elaboration strongly suggests that the strict standard announced is
indeed "fatal" for classifications burdening groups that have suffered
discrimination in our society. That seems to me, and, I believe, to the Court, the
enduring lesson one should draw from Korematsu v. United States, 323 U.S.
214, 65 S.Ct. 193, 89 L.Ed. 194 (1944); for in that case, scrutiny the Court
described as "most rigid," id., at 216, 65 S.Ct., at 194, nonetheless yielded a
pass for an odious, gravely injurious racial classification. See ante, at ____
(lead opinion). A Korematsutype classification, as I read the opinions in this
case, will never again survive scrutiny: such a classification, history and
precedent instruct, properly ranks as prohibited.
141 For a classification made to hasten the day when "we are just one race," ante, at
____ (SCALIA, J., concurring in part and concurring in judgment), however,
the lead opinion has dispelled the notion that "strict scrutiny" is " 'fatal in fact.'
" Ante, at ____ (quoting Fullilove v. Klutznick, 448 U.S. 448, 519, 100 S.Ct.
2758, 2795-2796, 65 L.Ed.2d 902 (1980) (Marshall, J., concurring in
judgment)). Properly, a majority of the Court calls for review that is searching,
in order to ferret out classifications in reality malign, but masquerading as
benign. See ante, at ____ (lead opinion). The Court's once lax review of sexbased classifications demonstrates the need for such suspicion. See, e.g., Hoyt
v. Florida, 368 U.S. 57, 60, 82 S.Ct. 159, 161-162, 7 L.Ed.2d 118 (1961)
(upholding women's "privilege" of automatic exemption from jury service);
Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1948)
(upholding Michigan law barring women from employment as bartenders); see
also Johnston & Knapp, Sex Discrimination by Law: A Study in Judicial
Perspective, 46 N.Y.U.L.Rev. 675 (1971). Today's decision thus usefully
reiterates that the purpose of strict scrutiny "is precisely to distinguish
legitimate from illegitimate uses of race in governmental decisionmaking,"
ante, at ____ (lead opinion), "to 'differentiate between' permissible and
impermissible governmental use of race," id., at ____, to distinguish " 'between
a "No Trespassing" sign and a welcome mat.' " Id., at ____.
142 Close review also is in order for this further reason. As Justice SOUTER points

out, ante, at ____ (dissenting opinion), and as this very case shows, some
members of the historically favored race can be hurt by catch-up mechanisms
designed to cope with the lingering effects of entrenched racial subjugation.
Court review can ensure that preferences are not so large as to trammel unduly
upon the opportunities of others or interfere too harshly with legitimate
expectations of persons in once-preferred groups. See, e.g., Bridgeport
Guardians, Inc. v. Bridgeport Civil Service Comm'n, 482 F.2d 1333, 1341
(CA2 1973). * * *
143 While I would not disturb the programs challenged in this case, and would
leave their improvement to the political branches, I see today's decision as one
that allows our precedent to evolve, still to be informed by and responsive to
changing conditions.

The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader. See
United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50
L.Ed. 499.

Justices Roberts, Murphy, and Jackson filed vigorous dissents; Justice Murphy
argued that the challenged order "falls into the ugly abyss of racism."
Korematsu, 323 U.S., at 233, 65 S.Ct., at 202. Congress has recently agreed
with the dissenters' position, and has attempted to make amends. See Pub.L.
100-383, 2(a), 102 Stat. 903 ("The Congress recognizes that . . . a grave
injustice was done to both citizens and permanent resident aliens of Japanese
ancestry by the evacuation, relocation, and internment of civilians during World
War II").

It should be obvious that every racial classification helps, in a narrow sense,


some races and hurts others. As to the races benefitted, the classification could
surely be called "benign." Accordingly, whether a law relying upon racial
taxonomy is "benign" or "malign," ante, at ____ (GINSBURG, J., dissenting);
see also, ante, at ____ (STEVENS, J., dissenting) (addressing differences
between "invidious" and "benign" discrimination), either turns on " 'whose ox
is gored,' " Regents of the Univ. of California v. Bakke, 438 U.S. 265, 295 n. 35,
98 S.Ct. 2733, 2751 n. 35, 57 L.Ed.2d 750 (1978) (Powell, J.) (quoting, A.
Bickel, The Morality of Consent 133 (1975)), or on distinctions found only in
the eye of the beholder.

As Justice GINSBURG observes, post, at ____, the majority's "flexible"


approach to "strict scrutiny" may well take into account differences between

benign and invidious programs. The majority specifically notes that strict
scrutiny can accommodate " 'relevant differences,' " ante, at ----; surely the
intent of a government actor and the effects of a program are relevant to its
constitutionality. See Missouri v. Jenkins, --- U.S. ----, ----, --- S.Ct. ----, ----, --L.Ed.2d ----, ---- (1995) (O'CONNOR, J., concurring) ("[T]ime and again, we
have recognized the ample authority legislatures possess to combat racial
injustice. . . . It is only by applying strict scrutiny that we can distinguish
between unconstitutional discrimination and narrowly tailored remedial
programs that legislatures may enact to further the compelling governmental
interest in redressing the effects of past discrimination").
Even if this is so, however, I think it is unfortunate that the majority insists on
applying the label "strict scrutiny" to benign race-based programs. That label
has usually been understood to spell the death of any governmental action to
which a court may apply it. The Court suggests today that "strict scrutiny"
means something differentsomething less strict when applied to benign
racial classifications. Although I agree that benign programs deserve different
treatment than invidious programs, there is a danger that the fatal language of
"strict scrutiny" will skew the analysis and place well-crafted benign programs
at unnecessary risk.
2

These were, of course, neither the sole nor the most shameful burdens the
Government imposed on Japanese Americans during that War. They were,
however, the only such burdens this Court had occasion to address in
Hirabayashi and Korematsu. See Korematsu, 323 U.S., at 223, 65 S.Ct., at 197
("Regardless of the true nature of the assembly and relocation centers . . . we
are dealing specifically with nothing but an exclusion order").

See Morton v. Mancari, 417 U.S. 535, 541, 94 S.Ct. 2474, 2478, 41 L.Ed.2d
290 (1974). To be eligible for the preference in 1974, an individual had to " 'be
one fourth or more degree Indian blood and be a member of a Federallyrecognized tribe.' " Id., at 553, n. 24, 94 S.Ct., at 2484, quoting 44 BIAM 335,
3.1 (1972). We concluded that the classification was not "racial" because it did
not encompass all Native Americans. 417 U.S., at 553-554, 94 S.Ct., at 24842485. In upholding it, we relied in part on the plenary power of Congress to
legislate on behalf of Indian tribes. Id., at 551-552, 94 S.Ct., at 2483-2484. In
this case the Government relies, in part, on the fact that not all members of the
preferred minority groups are eligible for the preference, and on the special
power to legislate on behalf of minorities granted to Congress by 5 of the 14th
Amendment.

For example, in Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102
L.Ed.2d 854 (1989), a majority of the members of the city council that enacted

the race-based set-aside were of the same race as its beneficiaries.


5

In his concurrence, Justice THOMAS argues that the most significant cost
associated with an affirmative-action program is its adverse stigmatic effect on
its intended beneficiaries. Ante, at ____. Although I agree that this cost may be
more significant than many people realize, see Fullilove, 448 U.S., at 545, 100
S.Ct., at 2809 (STEVENS, J., dissenting), I do not think it applies to the facts of
this case. First, this is not an argument that petitioner Adarand, a white-owned
business, has standing to advance. No beneficiaries of the specific program
under attack today have challenged its constitutionalityperhaps because they
do not find the preferences stigmatizing, or perhaps because their ability to opt
out of the program provides them all the relief they would need. Second, even
if the petitioner in this case were a minority-owned business challenging the
stigmatizing effect of this program, I would not find Justice THOMAS' extreme
proposition that there is a moral and constitutional equivalence between an
attempt to subjugate and an attempt to redress the effects of a caste system,
ante, at ____at all persuasive. It is one thing to question the wisdom of
affirmative-action programs: there are many responsible arguments against
them, including the one based upon stigma, that Congress might find persuasive
when it decides whether to enact or retain race-based preferences. It is another
thing altogether to equate the many well-meaning and intelligent lawmakers
and their constituentswhether members of majority or minority raceswho
have supported affirmative action over the years, to segregationists and bigots.
Finally, although Justice THOMAS is more concerned about the potential
effects of these programs than the intent of those who enacted them (a
proposition at odds with this Court's jurisprudence, see Washington v. Davis,
426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), but not without a strong
element of common sense, see id., at 252-256, 96 S.Ct., at 2053-2055
(STEVENS, J., concurring); id., at 256-270, 96 S.Ct., at 2055-2062
(BRENNAN, J., dissenting)), I am not persuaded that the psychological
damage brought on by affirmative action is as severe as that engendered by
racial subordination. That, in any event, is a judgment the political branches can
be trusted to make. In enacting affirmative action programs, a legislature
intends to remove obstacles that have unfairly placed individuals of equal
qualifications at a competitive disadvantage. See Fullilove, 448 U.S., at 521,
100 S.Ct., at 2796-2797 (Marshall, J., concurring in judgment). I do not believe
such action, whether wise or unwise, deserves such an invidious label as "racial
paternalism," ante, at ____ (opinion of THOMAS, J.). If the legislature is
persuaded that its program is doing more harm than good to the individuals it is
designed to benefit, then we can expect the legislature to remedy the problem.
Significantly, this is not true of a government action based on invidious
discrimination.

As I noted in Wygant:
"There is . . . a critical difference between a decision to exclude a member of a
minority race because of his or her skin color and a decision to include more
members of the minority in a school faculty for that reason.
"The exclusionary decision rests on the false premise that differences in race, or
in the color of a person's skin, reflect real differences that are relevant to a
person's right to share in the blessings of a free society. As noted, that premise
is 'utterly irrational,' Cleburne v. Cleburne Living Center, 473 U.S. 432, 452,
105 S.Ct. 3249, 3261, 87 L.Ed.2d 313 (1985), and repugnant to the principles
of a free and democratic society. Nevertheless, the fact that persons of different
races do, indeed have differently colored skin, may give rise to a belief that
there is some significant difference between such persons. The inclusion of
minority teachers in the educational process inevitably tends to dispel that
illusion whereas their exclusion could only tend to foster it. The inclusionary
decision is consistent with the principle that all men are created equal; the
exclusionary decision is at war with that principle. One decision accords with
the Equal Protection Clause of the Fourteenth Amendment; the other does not.
Thus, consideration of whether the consciousness of race is exclusionary or
inclusionary plainly distinguishes the Board's valid purpose in this case from a
race-conscious decision that would reinforce assumptions of inequality." 476
U.S., at 316-317, 106 S.Ct., at 1869 (STEVENS, J., dissenting).

Despite the majority's reliance on Korematsu v. United States, 323 U.S. 214, 65
S.Ct. 193, 89 L.Ed. 194 (1944), ante, at ----, that case does not stand for the
proposition that federal remedial programs are subject to strict scrutiny. Instead,
Korematsu specifies that "all legal restrictions which curtail the civil rights of a
single racial group are immediately suspect." 323 U.S., at 216, 65 S.Ct., at 194,
quoted ante, at ____ (emphasis added). The programs at issue in this case (as in
most affirmative-action cases) do not "curtail the civil rights of a single racial
group"; they benefit certain racial groups and impose an indirect burden on the
majority.

We have rejected this proposition outside of the affirmative-action context as


well. In Hampton v. Mow Sun Wong, 426 U.S. 88, 100, 96 S.Ct. 1895, 19031904, 48 L.Ed.2d 495 (1976), we held:
"The federal sovereign, like the States, must govern impartially. The concept of
equal justice under law is served by the Fifth Amendment's guarantee of due
process, as well as by the Equal Protection Clause of the Fourteenth
Amendment. Although both Amendments require the same type of analysis, see
Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 670, 46 L.Ed.2d 659 [ (1976) ],

the Court of Appeals correctly stated that the two protections are not always
coextensive. Not only does the language of the two Amendments differ, but
more importantly, there may be overriding national interests which justify
selective federal legislation that would be unacceptable for an individual State.
On the other hand, when a federal rule is applicable to only a limited territory,
such as the District of Columbia, or an insular possession, and when there is no
special national interest involved, the Due Process Clause has been construed
as having the same significance as the Equal Protection Clause."
9

The funding for the preferences challenged in this case comes from the Surface
Transportation and Uniform Relocation Assistance Act of 1987 (STURAA),
101 Stat. 132, in which Congress has granted funds to the States in exchange
for a commitment to foster subcontracting by disadvantaged business
enterprises, or "DBE's." STURAA is also the source of funding for DBE
preferences in federal highway contracting. Approximately 98% of STURAA's
funding is allocated to the States. Brief for Respondents 38, n. 34. Moreover,
under STURAA States are empowered to certify businesses as "disadvantaged"
for purposes of receiving subcontracting preferences in both state and federal
contracts. STURAA 106(c)(4), 101 Stat. 146.
In this case, Adarand has sued only the federal officials responsible for
implementing federal highway contracting policy; it has not directly challenged
DBE preferences granted in state contracts funded by STURAA. It is not
entirely clear, then, whether the majority's "congruence" rationale would apply
to federally regulated state contracts, which may conceivably be within the
majority's view of Congress' 5 authority even if the federal contracts are not.
See Metro Broadcasting, 497 U.S., at 603-604, 110 S.Ct., at 3029-3030
(O'CONNOR, J., dissenting). As I read the majority's opinion, however, it
draws no distinctions between direct federal preferences and federal preferences
achieved through subsidies to States. The extent to which STURAA intertwines
elements of direct federal regulations with elements of federal conditions on
grants to the States would make such a distinction difficult to sustain.

10

Because Congress has acted with respect to the States in enacting STURAA, we
need not revisit today the difficult question of 5's application to pure federal
regulation of individuals.

11

We have read 5 as a positive grant of authority to Congress, not just to punish


violations, but also to define and expand the scope of the Equal Protection
Clause. Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828
(1966). In Katzenbach, this meant that Congress under 5 could require the
States to allow non-English-speaking citizens to vote, even if denying such
citizens a vote would not have been an independent violation of 1. Id., at 648-

651, 86 S.Ct., at 1722-1724. Congress, then, can expand the coverage of 1 by


exercising its power under 5 when it acts to foster equality. Congress has
done just that here; it has decided that granting certain preferences to minorities
best serves the goals of equal protection.
12

Our skeptical observer might also notice that Justice O'CONNOR's explanation
for departing from settled precedent is joined only by Justice KENNEDY. Ante,
at ____. Three members of the majority thus provide no explanation
whatsoever for their unwillingness to adhere to the doctrine of stare decisis.

13

Of course, Justice Stewart believed that his view, disapproving of racial


classifications of any kind, was consistent with this Court's precedents. See
ante, at ____, citing 448 U.S., at 523-526, 100 S.Ct., at 2797-2799. But he did
not claim that the question whether the Federal Government could engage in
race-conscious affirmative action had been decided before Fullilove. The fact
that a justice dissents from an opinion means that he disagrees with the result; it
does not usually mean that he believes the decision so departs from the fabric of
the law that its reasoning ought to be repudiated at the next opportunity. Much
less does a dissent bind or authorize a later majority to reject a precedent with
which it disagrees.

14

STURAA accords a rebuttable presumption of both social and economic


disadvantage to members of racial minority groups. 49 CFR 23.62 (1994). In
contrast, 8(a) of the SBA accords a presumption only of social disadvantage,
13 CFR 124.105(b) (1995); the applicant has the burden of demonstrating
economic disadvantage, id., 124.106. Finally, 8(d) of the SBA accords at
least a presumption of social disadvantage, but it is ambiguous as to whether
economic disadvantage is presumed or must be shown. See 15 U.S.C. 637(d)
(3) (1988 ed. and Supp. V); 13 CFR 124.601 (1995).

15

The Government apparently takes this exclusion seriously. See Autek Systems
Corp. v. United States, 835 F.Supp. 13 (DC 1993) (upholding Small Business
Administration decision that minority business owner's personal income
disqualified him from DBE status under 8(a) program), aff'd, 43 F.3d 712
(CADC 1994).

16

"The unhappy persistence of both the practice and the lingering effects of racial
discrimination against minority groups in this country is an unfortunate reality,
and government is not disqualified from acting in response to it." Ante, at ____.
"Our findings clearly state that groups such as black Americans, Hispanic
Americans, and Native Americans, have been and continue to be discriminated
against and that this discrimination has led to the social disadvantagement of
persons identified by society as members of those groups." 124 Cong.Rec.

34097 (1978)
17

The Department of Transportation strongly urges States to institute periodic


review of businesses certified as DBE's under STURAA, 49 CFR pt. 23, subpt.
D, App. A (1994), but it does not mandate such review. The Government points
us to no provisions for review of 8(d) certification, although such review may
be derivative for those businesses that receive 8(d) certification as a result of
8(a) or STURAA certification.

18

The Government points us to the following legislative history: H.R. 5612, To


amend the Small Business Act to Extend the current SBA 8(a) Pilot Program:
Hearing on H.R. 5612 before the Senate Select Committee on Small Business,
96th Cong., 2d Sess. (1980); Small and Minority Business in the Decade of the
1980's (Part 1): Hearings before the House Committee on Small Business, 97th
Cong., 1st Sess. (1981); Minority Business and Its Contribution to the U.S.
Economy: Hearing Before the Senate Committee on Small Business, 97th
Cong., 2d Sess. (1982); Federal Contracting Opportunities for Minority and
Women-Owned Businesses An Examination of the 8(d) Subcontracting
Program: Hearings before the Senate Committee on Small Business, 98th
Cong., 1st Sess. (1983); Women EntrepreneursTheir Success and Problems:
Hearing before the Senate Committee on Small Business, 98th Cong., 2d Sess.
(1984); State of Hispanic Small Business in America: Hearing Before the
Subcommittee on SBA and SBIC Authority, Minority Enterprise, and General
Small Business Problems of the House Committee on Small Business, 99th
Cong., 1st Sess. (1985); Minority Enterprise and General Small Business
Problems: Hearing before the Subcommittee on SBA and SBIC Authority,
Minority Enterprise, and General Small Business Problems of the House
Committee on Small Business, 99th Cong., 2d Sess. (1986); Disadvantaged
Business Set-Asides in Transportation Construction Projects: Hearings before
the Subcommittee on Procurement, Innovation, and Minority Enterprise
Development of the House Committee on Small Business, 100th Cong., 2d
Sess. (1988); Barriers to Full Minority Participation in Federally Funded
Highway Construction Projects: Hearing Before a Subcommittee of the House
Committee on Government Operations, 100th Cong., 2d Sess. (1988); Surety
Bonds and Minority Contractors: Hearing before the Subcommittee on
Commerce, Consumer Protection, and Competitiveness of the House
Committee on Energy and Commerce, 100th Cong., 2d Sess. (1988); Small
Business Problems: Hearings before the House Committee on Small Business,
100th Cong., 1st Sess. (1987). See Brief for Respondents 9-10, n. 9.

If the statutes are within the 5 power, they are just as enforceable when the
national government makes a construction contract directly as when it funnels
construction money through the states. In any event, as Justice STEVENS has

noted, see ante, at ____, n. 5, ____, n. 6, it is not clear whether the current
challenge implicates only Fifth Amendment due process or Fourteenth
Amendment equal protection as well.
2

I say "press a challenge," because petitioner's Memorandum in Support of


Summary Judgment did include an argument challenging the reasonableness of
the duration of the statutory scheme; but the durational claim was not, so far as
I am aware, stated elsewhere, and, in any event, was not the gravamen of the
complaint.

On congressional authority to enforce the equal protection principle, see, e.g.,


Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 286, 85 S.Ct. 348,
373, 13 L.Ed.2d 258 (1964) (Douglas, J., concurring) (recognizing Congress'
authority, under 5 of the Fourteenth Amendment, to "pu[t] an end to all
obstructionist strategies and allo[w] every personwhatever his race, creed, or
colorto patronize all places of public accommodation without discrimination
whether he travels interstate or intrastate."); id., at 291, 293, 85 S.Ct., at 375,
377 (Goldberg, J., concurring) ("primary purpose of the Civil Rights Act of
1964 . . . is the vindication of human dignity"; "Congress clearly had authority
under both 5 of the Fourteenth Amendment and the Commerce Clause" to
enact the law); G. Gunther, Constitutional Law 147-151 (12th ed. 1991).

The Court, in 1955 and 1956, refused to rule on the constitutionality of


antimiscegenation laws; it twice declined to accept appeals from the decree on
which the Virginia Supreme Court of Appeals relied in Loving. See Naim v.
Naim, 197 Va. 80, 87 S.E.2d 749, vacated and remanded, 350 U.S. 891, 76
S.Ct. 151, 100 L.Ed. 784 (1955), reinstated and aff'd, 197 Va. 734, 90 S.E.2d
849, app. dism'd, 350 U.S. 985, 76 S.Ct. 472, 100 L.Ed. 852 (1956). Naim
expressed the state court's view of the legislative purpose served by the
Virginia law: "to preserve the racial integrity of [Virginia's] citizens"; to
prevent "the corruption of blood," "a mongrel breed of citizens," and "the
obliteration of racial pride." 197 Va., at 90, 87 S.E.2d, at 756.

See, e.g., H. Cross, et al., Employer Hiring Practices: Differential Treatment of


Hispanic and Anglo Job Seekers 42 (Urban Institute Report 90-4, 1990) (e.g.,
Anglo applicants sent out by investigators received 52% more job offers than
matched Hispanics); M. Turner, et al., Opportunities Denied, Opportunities
Diminished: Racial Discrimination in Hiring xi (Urban Institute Report 91-9,
1991) ("In one out of five audits, the white applicant was able to advance
farther through the hiring process than his black counterpart. In one out of eight
audits, the white was offered a job although his equally qualified black partner
was not. In contrast, black auditors advanced farther than their white
counterparts only 7 percent of the time, and received job offers while their

white partners did not in 5 percent of the audits.").


4

See, e.g., Ayres, Fair Driving: Gender and Race Discrimination in Retail Car
Negotiations, 104 Harv.L.Rev. 817, 821-822, 819, 828 (1991) ("blacks and
women simply cannot buy the same car for the same price as can white men
using identical bargaining strategies"; the final offers given white female testers
reflected 40 percent higher markups than those given white male testers; final
offer markups for black male testers were twice as high, and for black female
testers three times as high as for white male testers).

See, e.g., A Common Destiny: Blacks and American Society 50 (G. Jaynes &
R. Williams eds., 1989) ("[I]n many metropolitan areas one-quarter to one-half
of all [housing] inquiries by blacks are met by clearly discriminatory
responses."); M. Turner, et al., U.S. Department of Housing and Urban
Development, Housing Discrimination Study: Synthesis i-vii (1991) (1989
audit study of housing searches in 25 metropolitan areas; over half of AfricanAmerican and Hispanic testers seeking to rent or buy experienced some form of
unfavorable treatment compared to paired white testers); Leahy, Are Racial
Factors Important for the Allocation of Mortgage Money?, 44 Am.J.Econ. &
Soc. 185, 193 (1985) (controlling for socioeconomic factors, and concluding
that "even when neighborhoods appear to be similar on every major mortgagelending criterion except race, mortgage-lending outcomes are still unequal").

See, e.g., Associated General Contractors v. Coalition for Economic Equity,


950 F.2d 1401, 1415 (CA9 1991) (detailing examples in San Francisco).

Cf. Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 318, 106 S.Ct. 1842, 1870, 90
L.Ed.2d 260 (1986) (STEVENS, J., dissenting); Califano v. Goldfarb, 430 U.S.
199, 222-223, 97 S.Ct. 1021, 1034-1035, 51 L.Ed.2d 270 (1977) (STEVENS,
J., concurring in judgment).

On the differences between laws designed to benefit an historically disfavored


group and laws designed to burden such a group, see, e.g., Carter, When
Victims Happen To Be Black, 97 Yale L.J. 420, 433-434 (1988) ("[W]hatever
the source of racism, to count it the same as racialism, to say that two centuries
of struggle for the most basic of civil rights have been mostly about freedom
from racial categorization rather than freedom from racial oppression, is to
trivialize the lives and deaths of those who have suffered under racism. To
pretend . . . that the issue presented in Bakke was the same as the issue in
Brown is to pretend that history never happened and that the present doesn't
exist.").